Same Sex Marriage in Argentina

Abstract:     
In recent years, same sex marriage has become one of the hottest legal and political topics worldwide. Latin America is not an exception to that rule. Recently, in September 2007, the Argentine National Civil Court of Appeals rejected an injunction brought by a couple of two women that wanted to get married. In the injunction, they said that Art. 172 of the Argentine Civil Code - which requires that marriage be celebrated between individuals of different sex - is unconstitutional. According to the Court, however, the different sex requirement established by Art. 172 has an objective and reasonable justification: the state's interest in supporting couples who are prone to procreate and who are the basis of the institution of the family. Finally, the Court stated that the human rights conventions invoked by the plaintiffs do not support same sex marriage because their explicit reference to the right of men and women to marriage should be understood as their right to heterosexual marriage - the requirement that spouses should not be of the same sex has to do with the very essence of marriage. Even though these arguments are specific to this case, they represent the usual arguments put forwards in Latin American media and Courts. The aim of this paper is to examine in more detail these arguments and then consider their plausibility.

Number of Pages in PDF File: 7

Keywords: same sex marriage, legal theory, public law, Argentina, human rights conventions, minorities rights, constitutional law

JEL Classification: K33, K39, K10, K19

working papers series