Same-sex marriage in Spain

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Same-sex marriage in Spain
Spanish Parliament
Long title:	Ley 13/2005 por la que se modifica el Código Civil en materia de derecho a contraer matrimonio. (Law 13/2005 that amends the Civil Code regarding the right to contract marriage)
Introduced by:	President José Luis Rodríguez Zapatero (PSOE)
Dates
Date passed:	30 June 2005
Date signed into law:	1 July 2005
Related legislation:	Spanish Civil Code Law on Assisted Reproduction

Same-sex marriage in Spain was legalized in 2005. In 2004, the nation's newly elected Socialist government, led by President José Luis Rodríguez Zapatero, began a campaign for its legalization, which would include adoption by same-sex couples.^[1] After much debate, a law permitting same-sex marriage was passed by the Cortes Generales (Spain's bicameral parliament, composed of the Senate and the Congress of Deputies) on 30 June 2005 and published on 2 July 2005. Same-sex marriage officially became legal in Spain on Sunday, 3 July 2005.^[2]

The ratification of this law has not been devoid of conflict, despite support from 66% of the population.^[3] Roman Catholic authorities in particular were adamantly opposed to it, criticising what they regarded as the weakening of the meaning of marriage.^[4] Other associations expressed concern over the possibility of lesbians and gays adopting children.^[5] Demonstrations for and against the law drew thousands of people from all parts of Spain. After its approval, the conservative People's Party challenged the law in the Constitutional Court.^[6]

Approximately 4,500 same-sex couples married in Spain during the first year of the law.^[7] Shortly after the law was passed, questions arose about the legal status of marriage to non-Spaniards whose country did not permit same-sex marriage. A ruling from the Justice Ministry stated that the country's same-sex marriage law allows a Spanish citizen to marry a non-Spaniard regardless of whether that person's homeland recognizes the partnership.^[8] At least one partner must be a Spanish citizen to marry, although two non-Spaniards may marry if they both have legal residence in Spain.

Contents 1 History 1.1 Ratification of Law 13/2005 2 Reactions 3 Opposition court challenges 4 Residency issues 5 Marriage statistics 6 See also 7 References 8 External links

[edit] History

Legal recognition of Same-sex unions
Same-sex marriage
Belgium Canada Netherlands Norway South Africa Spain
Recognized in some regions
United States (MA, CA eff. 2008-6-16 at 5:01 p.m.)
Foreign marriages recognized
Aruba Israel Netherlands Antilles United States (NM, NY, RI)
Civil unions and registered partnerships
Andorra Czech Republic Denmark Finland France Germany Hungary (eff. 2009-1-1) Iceland Luxembourg New Zealand Slovenia Sweden Switzerland United Kingdom Uruguay
Recognized in some regions
Argentina (C, R, VCP) Australia (TAS, SA, ACT, VIC eff. 2008-12-1) Brazil (RS) Canada (QC) Mexico (Coah., DF) United States (CA, CT, DC, HI, ME, NH, NJ, OR, VT, WA)
Unregistered co-habitation
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Recognition debated
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Same-sex marriage debated, recognition granted
Czech Republic Denmark France Hungary Iceland New Zealand Portugal Sweden United Kingdom United States (CT, DC, HI, ME, NH, NJ, OR, VT, WA)
See also
Same-sex marriage Civil union Registered partnership Domestic partnership Timeline of same-sex marriage Listings by country
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During the 1990s, several city councils and autonomous communities had open registers for civil unions that allowed benefits for unmarried couples of any sex, although their effect was mainly symbolic.^[9] By then, Spanish law already allowed single people to adopt children. Thus, a same-sex couple could undertake a de facto adoption, but the partner who was not the legal parent had no rights if the relationship ended or the legal parent died.^[9] Same-sex marriages were illegal in autonomous communities, because the Spanish Constitution gives the State sole power to legislate marriage in Spain.^[9]

On 30 June 2004, Minister of Justice Juan Fernando López Aguilar announced that the Congress of Deputies had provisionally approved a government plan for legislation to extend the right of marriage to same-sex couples. This would fulfill a promise made by President José Luis Rodríguez Zapatero at his inauguration.^[1] López Aguilar also announced two propositions, introduced by the regional Convergència i Unió party of Catalonia. One introduced legal status for both opposite- and same-sex common-law unions (parejas de hecho, "de facto unions"), while the other permitted transgendered people to legally change their name and sex designation without the requirement of surgery.^[10]

The bill regarding same-sex marriage was approved by the Cabinet on 1 October 2004. It was submitted to Parliament on 31 December,^[11] and passed by the Congress of Deputies on 21 April 2005.^[12][13] However, the bill was rejected on 22 June 2005 by the Senate, where the opposition People's Party held a plurality of the seats.^[14] It was returned to the lower house, which holds the power to override the Senate, and which gave final approval to the bill on 30 June 2005 with 187 "yes" votes, 147 "no" votes, and four abstentions.

With the final approval of the law on 2 July 2005, Spain became the third country in the world to formally legalise same-sex marriages nationwide, after the Netherlands and Belgium.^[15]

The first same-sex wedding took place eight days after the approval of the law. It was celebrated in the council chamber in the Madrid suburb of Tres Cantos by Carlos Baturín and Emilio Menéndez.^[16] The first same-sex marriage between women took place in Barcelona eleven days later.^[17]

In spite of these steps toward equal treatment, there was still a legal flaw: children born within a lesbian marriage could not be legally recognized by the non-biological mother, who still had to undergo a time- and resource-consuming process of adoption.^[18] This right was granted to heterosexual couples (married or not), where the male partner who was not the biological father could recognize such children without further process. On 7 November 2006, the government amended the law on assisted reproduction, allowing the non-biological mother to recognize children born within a lesbian marriage.^[19]

[edit] Ratification of Law 13/2005

The projected bill announced on 30 June 2004 by the Minister of Justice was studied by the General Council of the Judiciary.^[20] Although the General Council admitted that the existing discrimination against homosexuals could not be condoned, it was quite critical about extending marriage toward same-sex couples (including collateral adoption). It argued that the extension was not demanded by the Constitution, and that ending discrimination could be achieved through other legal means, such as a regulation of civil unions.^[21]

Despite this negative report, the government presented the proposed bill to Congress on 1 October 2004. With the exception of the People's Party and members of the Democratic Union of Catalonia, the different parliamentary parties favoured the reform. On 21 April 2005, Congress approved the projected bill, with 183 "yes" and 136 "no" votes and 6 abstentions (including a member of the People's Party).^[22] The bill to allow same-sex marriage in Spain was short: it added a new paragraph to article 44 of the civil code, saying that Matrimony shall have the same requisites and effects regardless of whether the persons involved are of the same or different sex.^[23]

In accordance with constitutional provisions, the text approved by the Congress was then submitted to the Senate for final approval, change or veto. On 21 June 2005 experts were called to the Senate to debate the issue. The experts' opinions were diverse; some stated that gay adoption had no effect on a child's development, except for perhaps a higher tolerance towards homosexuality.^[24] However, psychiatrist Aquilino Polaino, called by the People's Party as an expert, called homosexuality a pathology and emotive disorder. Among other assertions that generated debate, he claimed that "many homosexuals have rape abuse antecedents since childhood" and that homosexuals generally come from families with "hostile, alcoholic and distant" fathers, and mothers who were "over protective" toward boys and "cold" toward girls. Prominent People's Party members later rejected Polaino's assertions.^[25]

The Senate vetoed the text submitted by the Congress. The veto was proposed by the People's Party, which held the majority of the seats, and by the Democratic Union of Catalonia, and was approved by 131 "yes" and 119 "no" votes and two abstentions.^[26] As a result, the text was sent back to the Congress. On 30 June 2005 it was approved by Congress, which, in accordance with the constitutional provisions, overrode the Senate veto. This was achieved with 187 "yes" votes (including a member of the People's Party, Celia Villalobos), 147 "no" votes, and four abstentions. The veto override implied its approval as law.^[2] The vote was held after Zapatero unexpectedly took the floor of parliament to speak in its support, saying We are expanding the opportunities for happiness of our neighbors, our colleagues, our friends and our relatives. At the same time, we are building a more decent society.^[27] Mariano Rajoy, the leader of the opposition People's Party, was denied the opportunity to address parliament after Zapatero's appearance, and accused Zapatero of dividing Spanish society.^[27]

When the media asked King Juan Carlos if he would endorse the bill that was being debated in the Cortes Generales, he answered that he was the King of Spain, not of Belgium – a reference to King Baudouin I of Belgium, who refused to sign the Belgian law legalizing abortion.^[28] The King of Spain gave his Royal Assent to Law 13/2005 on 1 July 2005; the law was gazetted in the Boletín Oficial del Estado on 2 July, and came into effect on 3 July.^[29]

[edit] Reactions

A poll by the government-run Center for Sociological Investigations (Centro de Investigaciones Sociológicas), published in April 2005, reported that 66% of Spaniards favoured legalising same-sex marriage.^[3] Another poll taken by Instituto Opina a day before the bill passed placed support of the same-sex marriage bill at 62.1% and support of adoption by same-sex couples at 49.1%.^[30] An Instituto Opina poll taken nine months after the bill passed said 61% agreed with the government's decision.^[31]

However, the bill's passage was met with concern by Roman Catholic authorities, including Pope John Paul II — who warned of a weakening of family values — and his successor Pope Benedict XVI.^[32] Cardinal López Trujillo, president of the Pontifical Council for the Family, said the Church was making an urgent call for freedom of conscience for Roman Catholics and appealing to them to resist the law. He said every profession linked with implementing same-sex marriages should oppose it, even if it meant losing their jobs.^[32] Gay rights supporters argued that while the Roman Catholic Church also formally opposed opposite-sex, non-religious marriage, its opposition was not as vocal; for example, the Church did not object to the marriage of Crown Prince Felipe to Letizia Ortiz, who had divorced from a previous civil marriage. The church was unable to gather enough support to derail the bill, even though 80% of Spaniards identify as Roman Catholic. Sociologists believe this may be due to the significant increase of liberalism in the realm of individual rights in recent years, where the Church traditionally had most influence, especially on family issues.^[33] A poll showed that three quarters of Spaniards believe the church hierarchy is out of touch with social reality.^[34] A complementary explanation might be that the Church's influence on Spaniards has declined since the death in 1975 of the dictator General Francisco Franco, whose regime was closely linked to the Church.^[35] Opinion polls suggest that nearly half of Spaniards now almost never go to mass.^[35]

President Zapatero responded to Catholic criticism by saying:

There is no damage to marriage or to the family in allowing two people of the same sex to get married. Rather, these citizens now have the ability to organize their lives according to marital and familial norms and demands. There is no threat to the institution of marriage, but precisely the opposite: this law recognizes and values marriage.

Aware that some people and institutions profoundly disagree with this legal change, I wish to say that like other reforms to the marriage code that preceded this one, this law will not generate bad results, that its only consequence will be to avoid senseless suffering of human beings. A society that avoids senseless suffering of its citizens is a better society.

In any case, I wish to express my deep respect to those people and institutions, and I also want to ask for the same respect for all of those who approve of this law. To the homosexuals that have personally tolerated the abuse and insults for many years, I ask that you add to the courage you have demonstrated in your struggle for civil rights, an example of generosity and joy with respect to all the beliefs.

– ^[36]

On 19 June 2005 there was a public protest against the law. Protesters — led by People's Party members, Spanish bishops and the Spanish Family Forum (Foro Español de la Familia) — said they had rallied 1.5 million people against what they considered an attack on the traditional family; the Government's Delegation in Madrid counted 166,000 at the same event.^[37] Two weeks after this protest, coinciding with Gay Pride Day, FELGT (Federación Estatal de Lesbianas, Gays, Transexuales y Bisexuales — the Spanish Lesbian, Gay, and Transgender Organization) estimated two million people marched in favour of the new law; police sources counted 97,000.^[38][39] Both marches took place in Madrid, at the time governed by the conservative People's Party.

Spanish bishops also claimed that the government, by equalizing same-sex and opposite-sex couples, weakened the meaning of marriage, which they defined as a couple of different sexes.^[4] The Spanish Family Forum expressed concern over the possibility of gay couples adopting and raising children, and argued that adoption is not a right for the parents, but for the adopted.^[5] Gay associations replied that de facto adoption by same-sex couples had existed for a long time in Spain, since many couples were rearing minors adopted by one of the partners. Adoption by same-sex couples was already legal in Navarre, Asturias, Aragon, the Basque Country, and Catalonia before the same-sex marriage law legalized these adoptions nationwide.^[40] These associations also argued that there was no scientific basis for the claim that the parents' sexual orientation would cause developmental problems for their adopted children. This view is officially supported by the Spanish School of Psychology, which also states that homosexuality is not a pathology.^[41]

[edit] Opposition court challenges

On 21 July 2005, a judge from the city of Dénia refused to issue a marriage license to a lesbian couple. The judge also filed a constitutional challenge against the same-sex marriage law with the Constitutional Court based on Article 32 of the Constitution that contains the phrase "Men and women have the right to contract marriage with full juridical equality."^[42] In August 2005, a judge from Gran Canaria refused licenses to three same-sex couples and mounted another constitutional challenge.^[43] In December 2005, the Constitutional Court rejected both challenges owing to both judges' lack of standing to file them.^[44] On 30 September 2005, the opposition People's Party decided to initiate a separate constitutional challenge, causing division within the party.^[45] There is no outcome as of late 2007. On 27 February 2007 the Spanish Family Forum presented an initiative signed by 1.5 million people to legislate marriage as the union of a man and a woman only (thus effectively prohibiting same-sex marriage). The initiative was rejected by the Spanish Congress.^[46] On 30 May 2007, the aforementioned judge of Dénia was condemned by the Disciplinary Committee of the General Council of Judiciary Power (Comisión Disciplinaria del Consejo General del Poder Judicial -CGPJ-) to pay 305 euros for refusing to marry a gay couple and was also strictly warned against doing it again.^[47] She attributes this action to the "propagandistic machinery" of the government.^[47]

[edit] Residency issues

Shortly after the law was passed, questions arose about the legal status of marriage to non-Spaniards after a Spaniard and an Indian national living in Catalonia were denied a marriage license on the grounds that India did not permit same-sex marriage.^[48] However, on 22 July another judge in Catalonia married a Spanish woman and her Argentinian national partner (the first same-sex marriage between women in Spain). This judge disagreed with his colleague's decision and gave preference to the right of marriage over Argentinian law not allowing same-sex marriage.^[49]

On 27 July, the Junta de Fiscales de Sala - a body within the Public Prosecutor's Corp that advises the Minister of Justice's office - issued an opinion that lesbian, gay, bisexual, and transgender (LGBT) Spaniards can marry foreigners from countries that do not permit same-sex marriage.^[50] This marriage would be valid according to Spanish law, but did not imply automatic validity according to the foreigner's national law. A ruling published in the Official State Bulletin stated:

“

a marriage between a Spaniard and a foreigner, or between foreigners of the same sex resident in Spain, shall be valid as a result of applying Spanish material law, even if the foreigner's national legislation does not allow or recognize the validity of such marriages.[8]

”

According to the instructions from the Ministry of Justice (Dirección General de Registros y Notariado), Spanish Consulates abroad may carry out the preliminary paperwork for a same-sex marriage.^[51] At least one of the marrying partners must be a Spanish citizen, residing in the Consular demarcation. However, the marriage itself can only take place at the Consulate if local laws recognize same-sex marriages (Spanish consulates in Boston, Brussels, Amsterdam, Toronto, Montreal, Ottawa and Cape Town as of March 2007). In all other cases, the partners must marry in Spanish territory.^[52] Two non-resident foreigners cannot marry in Spain, as at least one of the partners must be a Spanish citizen; two resident foreigners can do so.

[edit] Marriage statistics

On 4 September 2005, the conservative newspaper La Razón published data from 273 out of 430 Offices of Civil Registry showing 24 same-sex marriages had occurred to date out of over 35,000 marriages. The paper argued that the data contradicted the justifications of the government making the law a main priority of the legislature, as well as claims from gay rights activists that the law would benefit five to ten percent of the population. On 27 December 2005, the Minister of Justice reported that 327 same-sex marriages had been registered by 5 December in the 200 civil registries that were computerized at the time (out of a total of 437 civil registries in Spain). Among them 90 were in Madrid, 63 in Valencia, 35 in Barcelona and 18 in Seville.^[53] In the rest of the country, same-sex marriage and heterosexual marriage were not differentiated in the total number of civil marriages.

In early March 2006, Pedro Zerolo, a senior PSOE official, announced that more than 1,000 same-sex couples had married. Eight hundred marriages were recorded in the fully computerized areas (about half the country) and at least 200 were estimated in the rest of the country. Zerolo also said that one out of every ten marriages in Spain was between same-sex couples.^[54] According to FELGT, about 4,500 same-sex couples married during the first year of the law, 50 adoption petitions were made, and 3 divorces were granted.^[55]

On 27 June 2007, the Ministry of Justice announced 3,340 same-sex marriages had taken place in the last two years. It admitted, however, that the number could be "a third part of reality", as the data included only came from the 356 computerized registries, and did not include the data from more than 7,000 peace courts, or from the Basque Country.^[56] The Ministry of Justice went on to say that 2,375 of the marriages were between men and 965 were between women.^[56] Madrid was the region with most weddings, with 1,060, followed by Catalonia, with 871, Andalusia, with 399, and the Valencian Community, with 263, the Balearic Islands registered 116 same-sex marriages; Asturias, 101; Castile and León, 89; Aragon, 86; the Canary Islands, 83; the Region of Murcia, 61 and Castile-La Mancha, 56; Extremadura, 54; Galicia, 31; Cantabria, 28; Navarre, 25 and La Rioja, 13.^[56]

[edit] See also

• Civil unions in Spain
• Gay rights in Spain
• LGBT rights by country

[edit] References

[edit] External links

• CIS "barometer" from June 2004 showing 66.2% support for gay marriage (Spanish)
• Same-Sex Marriage: A Selective Bibliography of the Legal Literature (includes Spanish case)
• Webpage of a known activist supporter of the law that includes diary of events towards legalisation
• Spain Recognises UK Civil Partnership, December 13th 2007 press release

	Same-sex marriage by country
Performed nationwide in	Netherlands (2001) Belgium (2003) Spain (2005) Canada (2005) South Africa (2006)
Performed statewide in	Massachusetts, USA (2004) California, USA (2008)
Foreign same-sex marriage recognized in	Israel (2006) - Aruba (2007) - Netherlands Antilles (2007)
Debate in other countries and regions	Argentina - France - Latvia - Lithuania - New Zealand - Australia- Norway- Portugal - Romania - Sweden - Taiwan - United Kingdom - United States: Florida, Iowa, Maryland, New York, Oregon, Rhode Island, Washington
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