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    Marriage Equality Delayed Is Marriage Equality Denied

    By John Lewis and Stuart Gaffney–

    Six months ago, we reported on the Inter-American Court of Human Rights’ groundbreaking decision in favor of marriage equality. That court has jurisdiction over the 23 Latin American and Caribbean countries who are currently active parties to the American Convention on Human Rights. The ruling was unambiguous: only marriage equality, not a lesser alternative such as civil unions, suffices.

    The ruling, however, did not produce marriage equality overnight throughout Latin America and the Caribbean as the U.S. Supreme Court decision did across this country three years ago. The Inter-American Court of Human Rights lacks the enforcement power to compel member states to comply, although those countries are still bound by the court’s interpretation of the human rights treaty to which they are signatories. The bottom line is that each member nation must change its laws through its own legislatures or courts to abide by its treaty obligations, and they face no binding timeline to do so.

    This month Costa Rica, the country that requested the Human Rights Court opinion, became the first country to take a major step toward meeting its commitments when its Supreme Court ruled that excluding LGBTIQ couples from marriage was discriminatory and unconstitutional. But, unfortunately, that court gave the national legislature 18 months to implement its decision. If the legislature fails to act, the court’s order will take effect and marriages for same-sex couples will begin in early 2020.

    We believe that 2020 is too long to wait. We remember that during the California Supreme Court’s hearing 14 years ago on the legality of the San Francisco marriages of February 2004, Justice Joyce Kennard of the California Supreme Court asked the city: “What’s the rush?” We immediately thought of Phyllis Lyon and Del Martin, both over 80 years old and together for over 50 years, the first couple to marry in San Francisco. They and many thousands of other couples like ourselves had waited long enough. Indeed, every day that goes by in which an LGBTIQ person is denied equality is a day lost, leaving them vulnerable to harmful discrimination and denying them their dignity under the law.

    In Costa Rica, not one but two courts with jurisdiction have found that the law violates LGBTIQ people’s constitutional rights, allowing an 18-month delay in implementation that appears untenable. Costa Rican activist Margarita Salas told the Tico Times, Costa Rica’s leading English-language newspaper: “It’s a judicial aberration for a state entity to recognize that discrimination exists, and at the same time allow that discrimination to continue for 18 months more.”

    Such waiting periods do not appear to result in a country’s becoming more accepting of a final, binding judicial decision or in opposition subsiding. They seem to have the opposite effect. Opponents have time to devise strategies to undermine the decision, confuse it, or to delay it further, thereby denying citizens their rights and diminishing respect for the court in the eyes of the lawmakers and the public.

    Indeed, the Constitutional Court in Taiwan ruled in favor of full marriage equality 15 months ago, but instead of giving its decision immediate effect, it allowed the government two years to implement. If the government fails to act, marriages will begin in May 2019. The legislature has so far not acted, and the delay has given opponents of equality time to organize petition drives for referenda seeking to undermine the court’s decision on the November 24, 2018, national election ballot.

    As of press time, the referenda have yet to have been certified for the ballot and what, if any, legal effect they might have given the primacy of the Constitutional Court’s decision is unclear. The possible referenda and resulting confusion, however, may give the Taiwanese public the impression that LGBTIQ’s people’s constitutional rights are still up for grabs. And if passed, the referenda could weaken resolve to enforce the 2017 decision or further embolden opponents. No one knows better than we Californians the horror of having our fundamental constitutional rights and our marriages put up for a popular vote. This November marks the 10-year anniversary of the passage of Proposition 8, which took 5 years in the courts to overturn.

    We are thankful that the U.S. Supreme Court did not give individual states across the country 18 months or 2 years to implement its 2015 marriage equality ruling. Local communities all across the country, from Maine to Hawaii, Alaska to Florida, witnessing happy LGBTIQ couples tying the knot has increased support for marriage equality nationwide, and not sown division. A July 2018 PRRI poll showed nationwide support for marriage equality at a record 64 percent, up a whopping 9 percentage points from 3 years ago when the Supreme Court issued its decision.

    Opposition has fallen to 28 percent. Significantly, a May 2018 PRRI poll showed that majorities in 44 states now support marriage equality, with Alabama the lone state with majority opposition. Still, 41 percent of Alabama residents support equality, and support is near majority in North Carolina (49%), Louisiana (48%) and West Virginia (48%), with 46% support in Tennessee and 42% support in Mississippi.

    We salute the Costa Rica Supreme Court for ruling in favor of marriage equality, but LGBTIQ couples should not have to wait another year and half to marry. High courts and legislatures in other signatory countries in Latin America and the Caribbean should cease delay as well.

    Stuart Gaffney and John Lewis, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.