Over the course of just four days, January 8 through 11, 2018, major courts on three continents have issued rulings that will affect the rights of tens of millions of LGBT people. On January 8, the Supreme Court of India ordered reconsideration of the 2014 decision that had restored the country’s law against gay sex, in an Order that quoted extensively from prior rulings critical of the 2014 decision. On January 9, the Inter-American Court of Human Rights advised Costa Rica – and thus also sixteen other countries in Central and South America that are bound by the American Convention of Human Rights and do not yet have marriage equality – that same-sex couples are entitled to marry and that transgender people are entitled to get legal name changes without having to undergo sex reassignment surgery. And on January 11, one of the Advocates General of the European Court of Justice (ECJ), responding to a request for a preliminary ruling from the Constitutional Court of Romania, advised the ECJ that same-sex spouses of the citizens of member nations must be treated the same as different-sex spouses under the European Union Directive governing movement between states.
India has the second largest population of any country, over 1.3 billion people by the latest estimate. The European Union member countries have more than 500 million residents, and the combined countries within the Inter-American Union have close to a billion people, although some large countries, including Canada and the United States, are not subject to the Inter-American court’s ruling. But, of course, both Canada and the United States have marriage equality and don’t criminalize consensual gay sex among adults. This means that within the space of four days courts have potentially expanded LGBTQ rights to an extraordinary proportion of the world’s population, which is currently estimated at about 7.6 billion people, and marriage equality may soon become the norm throughout the Western Hemisphere, with only a few holdouts among states that do not recognize the jurisdiction of the Inter-American court.
The India ruling is yet another step in a complicated and long-running story. In 1860, under British Administration, the Indian Penal Code was adopted including what is now Section 377, providing, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” This colonial enactment was carried over into national law when India became independent and self-governing after World War II. It has been interpreted to outlaw all same-sex oral and anal intercourse. Although infrequently enforced, it has had the same stigmatizing effect as anti-sodomy laws in western societies before the slow process of decriminalization got under way during the second half of the 20th century.
Many LGBTQ people in India rejoiced and went heavily public in celebratory demonstrations in 2009 when the Delhi High Court, responding to a lawsuit filed by the NAZ Foundation, an HIV/AIDS advocacy non-governmental agency, ruled that Section 377 was unconstitutional as applied to private consensual adult same-sex intercourse. NAZ Foundation v. Government of NCT of Delhi, 111 DRJ 1 (2009). As the government did not initiate an appeal, many saw the lengthy, scholarly ruling as final and definitive.
However, Indian jurisprudence allows for anybody who is offended by a court ruling to ask the nation’s Supreme Court to review it, and a group of religious and social conservatives, led by Suresh Kumar Koushal, a Hindu astrologist, brought their case to the Supreme Court, where a two-judge bench reversed the High Court ruling in 2014, holding that the Constitution of India did not impede the government from maintaining the existing law, and rejecting the High Court’s citation of decisions from other countries (such as the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling) to support its decision. Koushal v. NAZ Foundation, 1 SCC 1 (2014). The Supreme Court panel minimized the significance of the issue, claiming that because there were very few homosexuals as a proportion of the population, it was not a matter of great importance. It also opined that the question of what sexual conduct to outlaw was for the legislature, not the courts, to decide.
Obtaining further review from a larger panel of the Court (which has 26 judges overall) is a time-consuming process, requiring filing “corrective petitions” and persuading a panel of the Court that the issue should be taken up anew. This process has been ongoing at the instance of NAZ Foundation and its supporters, but a new group of plaintiffs emerged in 2016 and initiated a petition directly with the Supreme Court, arguing that recent rulings in other cases by the Court, most notably a later 2014 ruling on the rights of transgender people, National Legal Service Authority v. Union of India 5 SCC 438 (2014), had cast significant doubt on the reasoning of the Koushal decision. This argument was bolstered last year when a nine-member panel of the Court, ruling on a challenge to a new national genetic identification system, Puttaswamy v. Union of India, 10 SCC 1 (2017), specifically discussed and disparaged the Koushal decision’s treatment of constitutional privacy and the rights of LGBTQ people.
The Court’s January 8 Order in Johar v. Union of India Ministry of Law and Justice, Writ Petition No. 76/2016, by a three-judge panel including Chief Justice Dipak Misra, provided an extensive summary of the arguments against the constitutionality of Section 377, quoting extensively from the 2014 transgender and 2017 privacy rulings, particularly those passages critical of the Koushal decision, and granted the petitioners’ request that a larger panel of the Court be convened to reconsider that decision. Interestingly, only the Petitioners were present at the Court’s hearing on January 8, with the argument being presented by Senior Advocate Arvind Datar. Nobody appeared from the government to oppose the request for reconsideration. The Order emerged immediately after the hearing.
While the Order does not specifically state that all of the Petitioners’ arguments are correct, after concluding its summary of the arguments and what the Petitioners are seeking, the Court stated, “Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal’s case requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”
A different Bench of the Court is presently considering the curative petition that was filed by the NAZ Foundation, so there was some speculation in the Indian press that the two cases could be combined before that larger panel. “In the meantime,” wrote the Court, “a copy of the petition be served on the Central Agency so that the Union of India can be represented in the instant matter. Let the matter be placed before Honorable the Chief Justice of India, on the administrative side, for consideration of the appropriate larger Bench.”
Indian jurisprudence is famous for its slow motion, but there was some optimistic speculation that an opinion from a larger Bench of the Court may emerge later this year. In light of the serious criticisms of the Koushal decision by other Benches of the Court, commentators were optimistic that the Delhi High Court’s original ruling striking down criminalization of consensual gay sex will ultimately prevail, and gay sex will become legal in the world’s second largest country.
The Inter-American Court’s ruling on January 9 came in response to a petition submitted two years ago by Luis Guillermo Solis, the President of Costa Rica, who had run for office on a pledge to expand LGBTQ rights in his Central American country. Opinion Consultiva, OC-24/17 (2017). In the face of legislative intransigence, Solis inquired whether Costa Rica was obligated under the American Convention on Human Rights to let same-sex couples marry. He also inquired about transgender rights. The Court, which actually sits in Costa Rica’s capital city, came back with a strong affirmation for LGBTQ rights. The opinion is initially available only in Spanish. According to translations published in English-language media sources, the court said that governments subject to the Convention “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex,” and that establishing a separate institution for same-sex couples, such as civil unions, was not adequate from the point of view of legal equality. The governments must “guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all rights of families formed by same-sex couples without discrimination.”
However, recognizing the kind of legislative intransigence encountered in Costa Rica and many other Central and South American countries, where the Roman Catholic Church has a heavy influence on social policy, the court recommended that government pass “temporary decrees” while new legislation is considered.
The Inter-American Court, in common with the European Court of Human Rights, is not empowered directly to order a government to do anything. Compliance requires acquiescence, and sometimes the court has resorted to demanding that governments explain why they have not complied with its rulings. For example, it took Costa Rica several years to come into compliance with a ruling by the Inter-American Court against bans on the use of in vitro fertilization.
President Solis reacted to the decision by calling for full compliance by the countries of the Inter-American Union. The Tico Times reported on January 10 that he told reporters, “Costa Rica and the other countries that have accepted the jurisdiction of the Inter-American Court must fully comply with the court’s opinion, respecting each country’s processing time, jurisdictional and administrative spaces. Solis pointed out that Costa Rica’s compliance would require a “gradual process,” requiring consultation between the various branches of government and the political parties.
The Court also addressed a question of transgender rights, recognizing as a human right that transgender people should be able to register themselves using the name and sex with which they identify, thus lining up with those countries that have in recent years moved towards recognizing self-declared gender identity without interposing a requirement that the individual document surgical gender confirmation procedures.
Commented Solis, “The court’s opinion ratifies our commitment to guaranteeing people access to the rights they acquire through their personal relations, without any sort of discrimination.” In a formal press release, the government stated: “Love is a human condition that should be respected, without discrimination of any kind. The State confirms its commitment to comply.”
The countries that are legally bound by rulings of the court include Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam and Uruguay. Some of those countries still penalize gay sex, while others already have marriage equality: Colombia, Brazil, Uruguay and Argentina. Litigation over marriage equality is pending in the Supreme Court of Panama. In Mexico, same-sex couples can marry in several states and the capital district, and all of the states are required to recognize those marriages, while a Supreme Court ruling mandates that lower courts issue orders, called “amparos,” requiring local officials to allow particular same-sex couples (or groups of couples) who obtain the orders to marry. The Inter-American Court’s ruling may hasten the spread of marriage equality to the remaining Mexican states.
Meanwhile, back in the European Union, Advocate General Melchior Wathelet’s preliminary ruling in the case of Relu Adrian Coman, a Romanian citizen who married Robert Clabourn Hamilton, an American citizen, in Brussels, Belgium, while Coman was living there and working for a European Union agency, may portend a significant advance for marriage equality in Europe. Coman v. Inspectorate General for Immigration, Case C-673/16 (January 11, 2018). Coman sought to bring his spouse back home to Romania, but the Romanian government was unwilling to issue the kind of spousal visa that is routinely granted when Romanians contract different-sex marriages elsewhere in Europe. Coman brought his case to the Constitutional Court of Romania, which referred the issue to the European Court of Justice for a determination of what obligation the country might have as a member of the Union.
Such matters are first presented to the office of the Advocate General (of which there are several), for an opinion advising the Court. If the Court decides to follow the Advocate General’s recommendation, its ruling becomes law throughout the European Union.
In some respects, Wathelet’s opinion is narrow and technical, because it doesn’t address a broad question of rights, but rather the narrower question of interpreting the Directive that guarantees freedom of movement within the European Union, with an eye to breaking down nationality barriers that would inhibit the movement of labor across national lines. Directive 2004/38 describes the “free movement of persons” as “one of the fundamental freedoms of the internal market.” The Directive supports such freedom by requiring member states to grant freedom of movement to family members of their citizens, and of course a “spouse” is a family member, but the term “spouse” is not generally defined. When the Directive was adopted in 2004, only two countries in Europe allowed same-sex marriage, but many others had registered partnerships for same-sex couples, so the Directive provides for free movement rights for such partners, but only “if the legislation of the host Member State treats registered partnerships as equivalent to marriage.”
In the case of Romania, not only is marriage defined as the union of a man and a woman, but the country’s marriage law specifies that same-sex couples may not marry, and the county provides no registered partnership status for same-sex couples. Thus, the question under EU law is whether the protection for family life and for spousal relationships would extend to same-sex spouses, overriding national law on the question of who is entitled to a residence visa (as opposed to the short-term entry visa of up to three months for tourists and business visitors). The key to this, it proved, was the established practice both in this Court and the European Court of Human Rights to adjust the definitions of terms in reaction to social developments.
Wathelet quoted an earlier decision stating that “EU law must be interpreted ‘in the light of present day circumstances,’ that is to say, taking the ‘modern reality’ of the Union into account.” This is to avoid the law become static and placing a drag on economic and social development. Wathelet noted that in a 2001 ruling, reflecting “present day circumstances” at that time, the Court had considered marriage to be “a union between persons of the opposite sex.” But this does not reflect the “modern reality.”
“In fact,” he wrote, “while at the end of the year 2004 only two Member States allowed marriage between persons of the same sex, 11 more Member States have since amended their legislation to that effect and same-sex marriage will be possible in Austria, too, by 1 January 2019 at the latest. That legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question. Statistical investigations confirm it; the authorization of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration. While different perspectives on the matter still remain, including within the Union, the development nonetheless forms part of a general movement. In fact, this kind of marriage is now recognized in all continents. It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.”
Wathelet also referred to decisions by the European Court of Human Rights, including those protecting the right of a national of a signatory state to the European Convention on Human Rights to bring a same-sex partner into the country. He also noted that European law now includes a ban on sexual orientation discrimination by Member States, and strong protection both under the European Union’s Charter and under the Human Rights Convention for “family life.”
He also contended that adopting a gender-neutral concept of spouse was consistent with the objective of the Directive, “to facilitate that primary and individual right to move and reside freely within the territory of the Member States which is directly conferred on citizens of the Union.” Freedom of movement would be impeded if lawfully married individuals could not bring the legal spouses with whom they have established a family relationship with them to return to live in their home country.
Thus, he recommended that the Court answer the questions posed by the Romanian Constitutional Court as follows: that “the term ‘spouse’ applies to a national of a third State of the same sex as the citizen of the European Union to whom he or she is married” for purposes of complying with Directive 2004/38 on freedom of movement. As applied directly to Mr. Coman’s case, it means that his marriage to an American citizen while Coman was living in Belgium, a European Union country that allows same-sex marriages, gives his spouse a derivative right under the Directive to obtain, automatically, the same kind of spousal visa to enter and live in Romania that would be provided to a different-sex spouse. Since Hamilton is not a citizen of any European Union Member State, his right is not direct and must be derived from the right of his husband to have Romania respect his marriage and family life, at least to the extent of allowing him to live together with his husband in his home country.
Reflecting the social divisions within the Union, several Eastern European nations – Latvia, Hungary, Poland and Romania – opposed this conclusion, while it was supported by submissions from the Netherlands and the European Commission.