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RIGHTS-EL SALVADOR: Anti-Gay Reform Fails in Congress

Edgardo Ayala

SAN SALVADOR, Sep 25 2009 (IPS) - Constitutional reforms that would ban same-sex couples from marrying and adopting children in El Salvador failed to obtain the required number of votes in Congress.

The proposed amendments were backed by right-wing parties in Congress, but opposed by the governing leftwing Farabundo Martí National Liberation Front (FMLN).

During the weeks running up to the vote on Thursday, Catholic and evangelical churches in El Salvador joined forces with rightwing parties to try to push through the constitutional reforms.

Hundreds of Catholics and evangelicals carrying placards with messages like “Marriage is Sacred, Let’s Defend It” marched through the streets of San Salvador on Saturday, Sept. 19 in support of the rightwing opposition bloc in parliament and to press the FMLN to ratify changes to three articles of the constitution.

The church groups held a permanent “prayer chain” and organised more street demonstrations early this week, in the hope that the reforms would be approved in the legislative vote on Thursday, Sept. 24.

Supporters of the reforms said they were defending public morality and the foundations of the family.

Changing the constitution in El Salvador requires approval of the amendments in one legislative period and ratification, by at least a two-thirds majority (56 votes), in the next parliamentary period. The current legislature, elected in January, was sworn in on May 1.

Amendments to articles 32, 33 and 34 of the constitution, closing off any possibility of marriage or civil union between homosexuals, or the adoption of children by same-sex couples, were introduced to Congress in 2006 and approved unanimously by the previous legislature in April 2009.

In the previous legislature, the FMLN supported the constitutional amendments, presumably to curry favour with voters at the centre. But during the campaign for the March 2009 elections in which President Mauricio Funes was elected, the party changed its position and now maintains that the changes violate the civil rights of the lesbian, gay, bisexual and transsexual (LGBT) community.

Votes from the FMLN, which holds 35 of the 84 seats in Congress, were needed to ratify the amendments, as the rightwing parties that support the changes do not have enough lawmakers to reach a two-thirds majority.

The National Republican Alliance (ARENA), which governed the country since 1989, has 32 seats, the National Conciliation Party (PCN) has 10 and the Christian Democratic Party (PDC) has five. The sole Democratic Change (CD) lawmaker also supports the reforms.

When the vote was taken late Thursday night, there were only 46 in favour – too few to ratify the proposed amendments.

Article 32, as it stands at present, states that the legal foundation of the family is marriage, based on the spouses’ equality before the law. The state is to encourage marriage, but “its absence shall not affect the enjoyment of rights that are established in favour of the family.”

The proposed reform would add a stipulation that only “men and women who were born so” are competent to enter into marriage. In addition, “Marriages between persons of the same sex celebrated or recognised under the laws of other countries, and other unions that do not fulfil the conditions established under Salvadoran law, will be null and void in El Salvador.”

Article 33 says the law will regulate personal and financial relations between the spouses and between them and their children, establishing reciprocal rights and duties on an equitable basis. It will also regulate family relations resulting from a stable union between a man and a woman.

But with the proposed changes, the last sentence would read: It will also regulate family relations resulting from a stable union between a man and a woman who were born so, and who are not subject to legal impediments preventing them from entering into marriage.

Finally, Article 34 states that every under-age child has the right to live in family and environmental circumstances that allow their all-round development, and for this purpose they shall have the state’s protection.

But the proposed reform adds: Adoption is recognised as an institution whose guiding principle will be the greater interest of the adoptee. Persons competent to adopt are those who fulfil the conditions laid down by law. Adoption by same-sex couples is prohibited.

The Roman Catholic Archbishop of San Salvador, José Luis Escobar, went to the lengths of suggesting on Sept. 13 that as a means of exerting pressure, the rightwing bloc could withhold their votes on bills that were crucial for the country’s first-ever leftwing government.

“If one party is refusing to vote and the others are convinced (the measure) is for the common good, the good of the nation, they could oblige them by denying the government party their votes, for example (to approve international) loans or the national budget,” Escobar told a press conference.

A Sept. 20 communiqué from the El Salvador Catholic Bishop’s Conference expressed full support for Escobar’s statements.

However, opposition parties stated officially that they would not condition their approval of other laws to the ratification of the controversial reforms, and the FMLN said it would maintain its stance towards the proposed amendments.

“The FMLN will not budge, we have taken a position and we will stick to it,” lawmaker and party spokesman Sigfrido Reyes told IPS before Thursday’s vote.

Formerly an insurgent guerrilla movement, the FMLN abandoned armed struggle and became a political party after the 1992 peace agreement put an end to 12 years of civil war in El Salvador.

Inheritance rights and social security and health benefits for homosexual couples would be denied if their unions are not recognised by the state.

LGBT organisations do not regard gay marriage as a matter of life or death, but they do want legal recognition of civil unions. A draft law to this effect was presented to Congress, but without success.

The reforms “would violate the principle of equality in article 3 of the constitution, which establishes that all persons are equal before the law,” activist Ana Cisneros, of the Alliance for Sexual Diversity, an umbrella group for LGBT organisations, told IPS.

A latent danger is that the proposed reforms and the churches’ campaign might encourage discriminatory attitudes in this country, which has one of the highest murder rates in the world: 55 per 100,000 people.

Since January, 20 homosexuals have been brutally murdered in apparent episodes of gay-bashing. None of the murders have been solved.

Ultra-conservative sectors want legislation based on religious prejudices, when El Salvador is a secular state, Cisneros said.

Because they are discriminatory, the proposed constitutional changes contravene international treaties signed by the state, like the Declaration on the Elimination of Violence against Women, adopted by the United Nations General Assembly in December 1993, which includes women belonging to sexual minorities, like lesbians, the activist said.

Discussion of the reforms extended beyond political circles and has triggered fierce ethical and religious debates in society and the media.

“This is a moral issue, not just a simple change in the law. We want the FMLN lawmakers, in the name of God, to make good their word and ratify the reforms,” evangelical Pastor Numa Rodezno, of the Christian Community of Santa Tecla, in the southwestern province of La Libertad, told IPS.

Luis Cardenal, head of the conservative Family Network, said that gays, lesbians and transgender people could live with their partners, as in fact they do, but said this should not be called marriage.

“Marriage must be between a man and a woman. A union between persons of the same sex can be called anything else, but not marriage,” Cardenal told IPS.

After the vote Thursday, the constitutional reform proposals were sent back for review by a commission. This saved them from being shelved for six months, and means they can be reintroduced at a later time during the current parliamentary period.