The Inter-American Court of Human Rights heard testimony a few weeks ago on a case that could overturn the legal definition of marriage in almost two dozen Latin American countries.
The case arrived to the court after an advisory opinion was issued by the Washington, D.C.-based Inter-American Commission on Human Rights urging the court to use this case to “contribute to the development of a jurisprudence in the matter of discrimination due to sexual orientation.” Sadly, this type of statement is part of a pattern of Pan-American judicial activism that now passes as international law.
While the original case had to do with access to government benefits, the commission is asking the court to go even further by arguing expressly that sexual orientation should be considered as a form of Ius Cogens. Ius Cogens is an international law principle that is applied to those rights that are so fundamental that no nation is allowed to transgress against them. In other words, applying the principle of Ius Cogens to sexual orientation would mean that the right is beyond the scope of democratic consideration.
In Latin America, international treaties and local laws almost unanimously define the family as being composed of one man and one woman. Because of that, the commission is in effect proposing to substitute this “limited and stereotypical concept of the family” with its own enlightened opinion.
The way the Inter-American human rights system usually works is that the Washington, D.C.- based commission acts as a semi-judicial body that renders advisory opinions and recommends cases up to the court in Costa Rica. The court then issues binding opinions on matters of human rights.
Colombia and roughly 19 other Latin American states submit to the jurisdiction of the court. Thankfully, the United States has not submitted to its jurisdiction, although it is subject to the commission in D.C.
In theory, the commission and the court are both bound by the American Convention on Human Rights, which unequivocally protects the definition of marriage as the union between one man and one woman and places this definition at the center of the protection of the family (Article 17). But clearly, the commission was not pleased with the treaties’ definition of the family and just as the U.S. Supreme Court did in the Obergefell v. Hodges decision, it is attempting to undemocratically decide what is best for hundreds of millions of people.
In his dissent to Obergefell, Justice Antonin Scalia wrote: “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” If the Duque case proceeds as expected to a decision that mandates the redefinition of marriage within the national laws of Latin America nations, the court in Costa Rica will have outdone the U.S. Supreme Court and made itself the unchecked “Ruler” of 600 million people.
Mr. Duque’s case should be considered moot. That’s because from 2007 to 2008, the courts in Colombia, including the highest court in the land, ruled that the Colombian constitution required same sex partners (even common law partners) to have all of the same benefits available to married people. But Mr. Duque and his activist lawyers refused to apply for the benefits to which he is now entitled, insisting instead upon his claim in the Inter-American system.
In Mr. Duque’s case, as in the Obergefell decision, the question is not one of equality; it is really a question of undemocratically imposing one understanding of the family over another.
Because U.S. contributions to the OAS budget account for most of the funds that maintain the commission and court, those in Congress who wish to protect natural marriage and the family should seriously consider defunding the OAS.
Gualberto Garcia-Jones is the spokesperson for the Inter-American Human Rights Network. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
