LGBT rights have been a special priority for the Inter-American Commission since 2011, when it established a special unit dedicated to LGBT rights. Around 50 complaints of violations of these rights are now pending before the commission, according to Victor Madrigal-Borloz, who leads the team responsible for reviewing claims of human rights violations and is the chief technical advisor to the LGBT rights unit. Once the commission begins advancing these cases through the legal process, we could see the pace of change in Latin America accelerate even further.
That could be especially true on marriage rights. Three Chilean couples filed a complaint with the commission in September 2012 after losing a legal battle for recognition in their country's courts. Activists in Costa Rica have also announced their intention to seek help from tribunal after a domestic partnership law died in the country's legislature late last year. A Paraguayan couple who married in Argentina also plan to take their battle for recognition to the Inter-American Court. If these petitions are successful, it could potentially mean the undoing of marriage bans in even the most conservative countries in Latin America. But the court is already proving to be a force for marriage rights even before formally taking up the question.
It handed down its first LGBT rights decision in February 2012 in a case known as Karen Atala y Niñas v. Chile. The case was brought by a lesbian mother who lost custody of her children to her ex-husband because of her sexual orientation. The court's ruling was sweeping, saying for the first time that the American Convention on Human Rights "prohibits ... any rule, act, or discriminatory practice based on sexual orientation."
The significance for marriage rights was tested almost immediately in Mexico. Most Mexican states still refuse to perform same-sex marriages, even though they have been legal in Mexico City since 2010 and the country's supreme court has ruled that these marriages are valid nationwide. Three Oaxacan couples had filed a long-shot challenge to their state's ban on same-sex marriages shortly before the Atala decision was handed down, represented by a law student named Alex Alí Méndez Díaz. As their case headed to Mexico's supreme court, the Atala decision provided an additional powerful precedent on which to make their case.
On Dec. 5, Mexico's high court sided with the three couples and said that marriage could not be restricted to heterosexual couples. Technicalities of Mexico's legal system mean that more lawsuits are still required before same-sex couples can easily marry in every state, but this ruling means that it will soon be possible.
This year, the U.S. Supreme Court is weighing exactly the same questions that Mexico's court has already resolved. But the U.S. justice system is fiercely resistant to considering legal decisions from abroad.
When the justices take up the gay marriage cases in March, there will be more at stake than the status of American gay and lesbian couples. They will be deciding whether the United States will fall behind as its neighbors establish a new standard of human rights, or whether it will join a revolution that is well underway.
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