Williams Institute Scholar Testifies at Constitutional Court of Colombia

On July 30, 2015, Prof. Nan Hunter, Associate Dean at Georgetown Law and Williams Institute Distinguished Scholar, testified at the Constitutional Court in Bogota, Columbia. An expert on matrimonial law, Hunter was invited to testify at a hearing to decide whether to extend equal marriage rights to same-sex couples.

This hearing follows years of litigation by same-sex couples seeking marriage equality in Colombia. In 2011, the Constitutional Court issued a decision recognizing the equal rights of same-sex couples to civil marriage. The Court, however, stopped short of ordering government agencies to issue marriage certificates. Instead, the Court ordered the National Congress to enact legislation, setting a deadline of June 20, 2013. The Court’s ruling provided that if the Congress failed to act by that deadline, same-sex couples could have their marriage solemnized by act of a notary.

The National Congress has not acted on this issue, which has placed same-sex couples in a legal limbo. Many notaries and judges have refused to register marriages for same-sex couples, who are therefore forced to enter into contracts or use guardianship mechanisms to secure their relationship. The legal status of alternative contracts is unclear, however, and the government prosecutor has sought to void some of these agreements.

“This Court must now decide whether each individual’s right to equality and dignity can be properly protected in any way other than by granting access to civil marriage. The Court in its prior decisions has already recognized the equal dignity of gays and lesbians,” Hunter noted. “Waiting for the National Congress to act is not a neutral of even-handed resolution: It is a decision to continue the denial of the recognition of equal dignity for all persons.”

In answering the questions posed to her by the Columbian Constitutional Court, Hunter’s testimony includes a comparative analysis of the recent decisions in the U.S. Supreme Court in issues of marriage. Hunter points out that the Colombian Constitution recognized not only equality but the fundamental right to dignity. “The pre-eminent position of the dignity right is unambigious. The Colombian Court has the advantage of this constitutional text that is more explicit and powerful than the text that was available to the U.S. Supreme Court.”

Hunter is one of several international experts on matrimonial law who testified at the Court. She was joined by Robert Wintemute of Kings College, London. Wintemute was a visiting scholar at the Williams Institute in 2014. The Williams Institute also filed briefs in the Colombian Constitutional Court on the issues of marriage and parenting rights.

Click here to read Nan Hunter’s brief.
Click here to read Robert Wintemute’s brief.
Click here to read the testimony of Macarena Sáez, American University, Washington College of Law.
Click here to read the Obergefell v. Hodges decision in Spanish.

Click here to watch video footage of the hearing in Spanish. (en español)