"marriage" between persons of the same sex (report to Commission General Legislation Senate Nation )
Jorge Horacio Gentile *
I assume that t ll human beings have been created equal in dignity and rights, to image and likeness of God, the Creator and we are children and heirs of heaven, so we reject all forms of discrimination, especially those that may affect homosexuals. I also think, as stated in Catechism Church Catholic , there are men and women: "I do not choose their homosexual condition. (... and ) must be accepted with respect, compassion and sensitivity. Be avoided, for Every sign of unjust discrimination. "
But at the heart of the parliamentary agenda the government has set up another issue that divides Argentina : The marriage between same sex. The House of Deputies passed an amendment to the Civil Code which allows, by substituting the expression: "man and wife" or "spouses" by "contracting " and extended to same-sex couples the right to adopt.
This is contrary to marriage as a natural institution, which aims: the love between husband and wife, procreation, preservation of the species, breeding, care, maintenance and education of children. And is not consistent with the meaning of the word marriage, according to the Dictionary English Language , is: Union of men and women agreed with certain rites or legal formalities. " The Latin expression matrimonium comes from Matrem (mother) and monium (quality).
While Dalmacio Velez Sarsfield by that which by law must not be defined , not define marriage ended in drafting the Code Civil: no doubt or question that concerned the union of man and woman. When the divorce law passed, 23,515, I made explicit by saying: "It is essential for the existence of the marriage the full and free consent given personally by men and women (...)" (art. 172 Civil Code).
President Hipólito Yrigoyen , in the same direction and with a bill of divorce, said " ethical The family that comes from our ancestors has been the cornerstone on which is founded the greatness of the country, that marriage, as it is precepts, preserved in our society strong reputation for moral and legal rules which it rests. Every innovation in this sense can determine transitions that are so deep denial of what attributes are its most expensive. VH so, you must meditate very deeply to see whether it is the powers of the powers that be, vital reforms of significance or whether they belong to the constituent. Not enough that the marriage is governed by the Civil Code to conclude that it is subject to change in its essence by simple legislative act. "
same concept of marriage found in the Constitution , as amended by Peronism in 1949 , when Article 37 II said: "(...) L a family as the primary nucleus and fundamental unit of society, will be preferred by the state protection, that recognized their rights with respect to its constitution, defense and fulfillment of its purposes. 1. The State protects marriage, ensuring the legal equality of spouses and custody. (...) 4. The attention and care of the mother and child enjoy the special and privileged consideration of the State. "
UNCONSTITUTIONALITY
But the project, which the Senate debate, in addition to counter the natural and institutional meaning of marriage is contrary to the Constitution amended in 1994, which declared constitutional status (Art. 75, 22) the following international human rights instruments, when they have:
· In the Universal Declaration Human Rights : "Men and women , from marriageable age have the right, without any limitation due to race, nationality or religion, to marry and start a family, and enjoy equal rights as to marriage, during marriage and upon dissolution of marriage. "(...) The family is the natural and fundamental society and is entitled to protection by society and the state. "( Art. 16).
· In the American Convention Human Rights : "1. The family is the natural fundamental unit of society and should be protected by society and the state. 2. It recognizes the right of men and women to marry and to found a family shall be age and conditions required by domestic laws, insofar as they do not affect the principle of nondiscrimination established in this Convention. " (Art. 17).
· In International Covenant on Civil and Political Rights : " The family is the natural fundamental unit of society and is entitled to protection by society and the state. " (Art. 23 ).
· In International Covenant on Economic, Social and Cultural : "should be accorded to the family, which is the natural fundamental unit of society, the widest possible protection and assistance, particularly for its establishment and while it is responsible for the care and education of dependent children. (...) Should be given special protection to mothers for a reasonable period before and after delivery. During this period (...). " (Art. 10)."
· The Convention on Elimination of All Forms of Discrimination against Women : (...) to eliminate discrimination against women in all matters relating to marriage and family relations and in particular to ensure, on condition of equality between men and women: (...) g) The same personal rights between husband woman , including choosing the name, profession and occupation . (...) (Art. 16)
Neither Congress by law, or a referendum (Article 40 of the Constitution and 1 Law 25,432), it can reform, integrating the Constitutional Bloc. To report these international treaties should do the Executive, following approval by two-thirds of all members of each House of Congress (art. 75, 22). The bill approved by the House of Deputies is therefore unconstitutional.
In support of this project said, forcing the wording of the provisions, that those standards do not address the marriage of man and woman , but the men and women , and to be understood as encompassing the same sex. But that does not agree with the statement of other rights that are declared in the same, which are attributed to the person always and only refers to " men and women " when comes to marriage. In the 30 articles of Universal Declaration only when it comes to marriage using the formula " men and women "the rest is concerned, the positive, "All human beings," "Everyone" "Everyone" "Everyone" "Everyone", "The rights of man" , " Parents "and, on the negative," No " .
The largest Constitutionalists of our generation, J. Germain Bidart Campos, when he wrote, commenting on the Pact of San José de Costa Rica, said: "operationally Paragraph 2 recognizes the right to marry. Here it focuses a subjective right of every person - man and woman for marriage, so that the rule would not cover unions between same sex. Indeed, even if not said that the law is to marry "each other" (the man and woman), we of course that's the meaning of the clause, and that the design was not intended to give the extent that "men and women" securitize the right to marry not "together" but the man with another man and a woman to another woman. "
addition, international instruments, they emphasize that: "The family is the natural element fundamental unit of society" , which is denied in the project that aims to turn marriage into a mere contract. When mentioning " The parents " in Declaration Universal , if we suggesting Dictionary Language English the meaning of expression Father plural, indicates that it is: " The padre y la madre ” . Cuando se habla de la protección que merecen las “ madres (…) antes y después del delivery "in International Covenant on Economic, Social and Cultural , he is referring to something is impossible to give same-sex, not being able to engender.
The impediments marriage set in Civil Code as consanguinity between ascendants and descendants without limitation, and between siblings and half siblings, and affinity in a straight line in all grades (art . 116 paragraphs 1, 2 and 4), are meaningful in heterosexual marriage, but no sense in same-sex couples, it is impossible including natural procreation, and may even be labeled as discriminatory, for those affected by their disabilities and belong to the same sex, should be this absurd equation. The duty of mutual fidelity, under Article 198, and the cause of separation for adultery, established in paragraph 1 of 202 of the Civil Code do not have the same sense as the union between persons of the same sex, in marriage.
Civil Union
If we consider that in our society there are same sex, homosexual or not, who voluntarily want to live together and assist one another, permanently, is that, without changing legislation on marriage and unreformed the Constitution , you could create by law a kind of partnership or civil union , Understanding them , to regulate the effects of economic issues, room, social work and inheritance that may arise between those who part of it.
regime adoption , governed by the principle of best interests is not necessary to change since the Current allows people to adopt are not united in marriage.
Fernando Savater has written "It is said that all cultures are equally valid and that there are some better than others. I think that's not true. The culture that includes greater than that excludes, culture that respects and understands me seems to be higher than hostility to the different feel, the living culture in the plural forms of love, pray, think or sing takes precedence over which is entrenched in harmony with unanimous and confused uniformity " .
Article 11 of the Constitution of City Autonomous of Buenos Aires has declared it " right to be different , not admitting discrimination that tend to segregation for reasons or grounds (...), sexual orientation, (...) " in order to recognize, among others, the rights of homosexuals - whom they have been socially discriminated unfairly hard long time - noting that interpretation of the principle of equality before the law proclaims "equal among equals in the same circumstances ." But in that project debate when it attempts to regulate marriage between persons of the same sex violates the rights to the equipment, which is distinct and different, such as marriage with civil unions for same-sex, and replace the condition natural and legal father or mother, husband or wife, with the single " contracting." The law seeks to punish, then, also suffered this right to be different.
Bidart Campos has said about that: "(...) to support the union gay is not equal to the conjugal union of man and women, we are not thinking about what can or can not do sexually with each other the same sex and opposite sex. That distinction does not concern us, because it makes everyone's privacy. But the difference biological and organic - and coexistence - between men and women away about how it seemed that there may be between marriage and homosexual marriage goes beyond sex, because it extends to the aforementioned personal role, mode of being and living, and personal identity also gives them support and has the imprint of one's personal sex. "
For the foregoing reasons, and I request that the project, as is proven of deputies, should be rejected by the Senate.
Cordoba, June 2010.
* is Professor of Constitutional Law at the National and Catholic University of Cordoba, Academic corresponding Academy National Moral and Political Sciences and was a member of the Nation. Blog : jorgegentile.com /
From: "Law 12. 839. Documents Hipólito Yrigoyen. Apostolate Civic. Work of government. Defense before Court "Buenos Aires, Senate of Nation , 1986 by Norberto Padilla
" Some considerations on the introduction of marriage between same-sex" presented at the Institute of Constitutional Law Academy National Moral and Political Science, "the May 20, 2010.
Bidart Campos, J. Germain Elementary Treatise Argentine Constitutional Law, Volume III, p. 493, Ediar, 1995, quote from the aforementioned work of Norberto Padilla.
