Recognition of same-sex unions in El Salvador

El Salvador recognizes neither same-sex marriage, civil unions or any other legally recognized union for same-sex couples. A proposal to constitutionally ban same-sex marriage and same-sex adoption was rejected twice in 2006, and once again in April 2009 after the FMLN refused to grant the measure the four votes it needed to be ratified.[1]

Marriage
Civil unions and
registered partnerships
Common-law marriage
Minimal recognition
See also
Notes
  1. Performed statewide in 18 states and Mexico City, in certain municipalities in three other states, and recognized by all states in such cases.
  2. Performed in the Netherlands proper, including the Caribbean Netherlands. Registered in Aruba, Curaçao and Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  3. Neither performed nor recognized in Niue, Tokelau or the Cook Islands.
  4. Not recognized in Caribbean overseas territories, though marriage-equivalent ordered for the Cayman Islands.
  5. Neither performed nor recognized in American Samoa or some tribal nations.
  6. Cohabitation. Registered foreign marriages confer limited rights. Marriage recognized in Tel Aviv.
  7. Degree of recognition unknown. No actual cases to date.
  8. Limited to residency rights for foreign spouses of EU citizens.
  9. Legal guardianships (nationwide, except Hong Kong and Macau), residency rights for foreign spouses of legal residents (Hong Kong).
  10. Recognition of foreign marriage for parental rights
  11. Maitri Karar–type contractual relationships, but it is not legally enforceable
  12. Offer "partnership certificates", which provide some tools (such as hospital visitation rights) but do not offer any legal recognition
  13. Limited to spouses of foreign diplomatic officials.
* Not yet in effect or automatic deadline set by judicial body for same-sex marriage to become legal
LGBT portal

El Salvador must legalise same-sex marriage, per a 2018 Inter-American Court of Human Rights ruling, which stated that countries that have ratified the American Convention on Human Rights must recognise such marriages.

History
Homosexuality laws in Central America and the Caribbean Islands.
  Same-sex marriage
  Other type of partnership
  Unregistered cohabitation
  Country subject to IACHR ruling
  No recognition of same-sex couples
  Constitution limits marriage to opposite-sex couples
  Same-sex sexual activity illegal but law not enforced

In August 2016, a student of law in El Salvador filed a lawsuit before the Supreme Court asking for the nullification of Article 11 of the Family Code which defines marriage as a heterosexual union. Labeling the law as discriminatory and explaining the lack of gendered terms used in Article 34 of the Constitution's summary of marriage, the lawsuit sought to allow same-sex couples the right to wed.[2][3] On 20 December 2016, the Salvadoran Supreme Court rejected the lawsuit on a legal technicality.[4]

A second lawsuit against the same-sex marriage ban was filed on 11 November 2016.[5] On 17 January 2019, the Supreme Court dismissed the case on procedural grounds.[6][7]

On 9 August 2019, a same-sex marriage case was admitted to the Constitutional Court. Originally filed in 2016 by activist Gabriel Gasteazoro, the case alleges that the provisions outlawing same-sex marriages in the Family Code are unconstitutional.[8][9] A ruling is expected in the first three months of 2020,[10] but has been postponed since then.

Constitutional attempts to ban same-sex marriage

The Constitution of El Salvador does not explicitly ban the recognition of same-sex marriages. Article 32 reads: "The legal foundation of the family is marriage and rests on the juridical equality of the spouses."[lower-alpha 1]

In 2006, a constitutional amendment to ban the legal recognition of same-sex marriage was proposed. The measure was backed by the conservative Christian Democratic Party, then President Antonio Saca and several other parties; i.e. Democratic Change, the Front for Democratic Revolution and the National Conciliation Party.[12] But was opposed, and thus defeated, by the FMLN. It failed to win enough votes to be formally ratified due to the FMLN legislators.

While the Farabundo Martí National Liberation Front (FMLN) has consistently opposed attempts to amend the Constitution to prohibit same-sex marriage, citing their belief that such laws are discriminatory, the party has stated that it has no intention to legalize same-sex marriage.

On 30 April 2009, the Legislative Assembly of El Salvador approved a last-minute constitutional amendment that would have banned same-sex couples from marrying by defining marriage as being between only "a man and a woman" and barring them from adopting children. Civil rights groups vowed to fight the measure, which still needed to be voted on by other government branches before becoming law.[13] The amendment eventually failed the same month.

On 25 April 2012, a same-sex marriage and adoption ban was introduced to the Legislative Assembly. The measure eventually failed on 8 February 2014, after only receiving 19 votes in favor of its ratification.[14]

On 17 April 2015, a constitutional amendment to ban same-sex marriage and adoption was approved once again in the Assembly during its first reading with 47 votes in favor. To be successfully included in the country's Constitution, the law had to be ratified by a two-thirds majority of the Assembly, or 56 of its 84 members.[15] In November 2016, following a lawyer's constitutional challenge against the country's statutory same-sex marriage ban (see above), some conservative MPs renewed their efforts to constitutionally ban same-sex marriage.[16]

In January 2018, the Salvadoran Constitutional Court declared the proposed constitutional amendment banning same-sex marriage unlawful, because it was "fast-trecked through the Assembly and voted on urgently just days left in the session."[17]

2018 Inter-American Court of Human Rights ruling

On 8 January 2018, the Inter-American Court of Human Rights (IACHR) ruled that the American Convention on Human Rights mandates and requires the recognition of same-sex marriage. The ruling was fully binding on Costa Rica and set binding precedent in other Latin American and Caribbean countries including El Salvador.[18]

In the wake of this ruling, LGBT advocacy groups have urged the Government of El Salvador to abide by the ruling, and legalise same-sex marriage.[19]

Public opinion

According to a 2008 poll, 14% of Salvadorans supported same-sex marriage, while 80% were opposed and 6% were undecided.[20]

A 2010 poll revealed that El Salvador had some of the lowest support for legalizing same-sex marriage in Latin America at 10%.[21]

According to a Pew Research Center survey, conducted between November 9 and December 17, 2013, 11% of Salvadorans supported same-sex marriage, 81% were opposed.[22][23]

The 2017 AmericasBarometer showed that 19% of Salvadorans supported same-sex marriage.[24]

See also

Notes
  1. In Spanish: El fundamento legal de la familia es el matrimonio descansa en la igualdad jurídica de los cónyuges.[11]

References
  1. "elsalvador.com, El FMLN sigue en contra de prohibir las bodas gay". Elsalvador.com. 2009-04-28. Retrieved 2014-04-11.
  2. Same-sex Marriage Lawsuit Filed in El Salvador
  3. (in Spanish) Piden declarar inconstitucional exclusión de matrimonio a personas del mismo sexo
  4. (in Spanish) Sala Constitucional de El Salvador rechaza solicitud de matrimonio homosexual
  5. (in Spanish) Piden a Sala Constitucional que autorice el matrimonio homosexual en El Salvador
  6. "Corte Suprema de El Salvador rechaza nueva demanda del matrimonio igualitario". Washington Blade (in Spanish). 22 January 2019.
  7. "Piden a juzgadse salvadoreña resolver demanda para permitir matrimonio gay". La Vanguardia (in Spanish). 19 January 2019.
  8. López, Jaime (10 August 2019). "Sala Constitucional abre juicio por matrimonio homosexual". elsalvador.com (in Spanish).
  9. "Sala admite demanda que busca eliminar prohibición de matrimonio entre personas del mismo sexo". elsalvadorgram (in Spanish). 9 August 2019.
  10. "Sala de lo Constitucional resolvería demanda sobre matrimonio igualitario en los primeros tres messes de 2020". elsalvador.com (in Spanish). 6 January 2020.
  11. "Constitución de la República de El Salvador". concourt.am (in Spanish).
  12. Fear of "Gay Planet" in El Salvador
  13. El Salvador Bans Same-Sex Marriage and LGBT Adoption Rights in Last Minute Constitutional Amendment
  14. Attempt To Ban Gay Marriage Fails In El Salvador
  15. El Salvador approves measures banning same-sex marriage, gay couple adoption
  16. (in Spanish) La enésima procesión en la Asamblea en contra del matrimonio igualitario
  17. El Salvador: Constitutional ban on same-sex marriage blocked ABC News, 31 January 2018
  18. "Inter-American Court endorses same-sex marriage". Agence France-Presse. Yahoo7. 9 January 2018. Archived from the original on 9 January 2018. Retrieved 9 January 2018.
  19. Latin America countries urged to abide by landmark LGBT rights ruling The Washington Blade, 15 January 2018
  20. El Salvador: Situation of homosexuals, including societal attitudes and availability of state protection and support services
  21. Lodola, German; Margarita Corral (2010). "Support for Same‐ Sex Marriage in Latin America" (PDF). AmericasBarometer Insight. 44.
  22. Religion in Latin America Chapter 5: Social Attitudes
  23. Religion in Latin America Appendix A: Methodology
  24. (in Spanish) CULTURA POLÍTICA DE LA DEMOCRACIA EN LA REPÚBLICA DOMINICANA Y EN LAS AMÉRICAS, 2016/17
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