SU-214/16 marriage of same sex couples from notaries and judges
In this decision the Constitutional Court acquainted different cases in which: i) two independent claimants, both same sex couples, required by acción de tutela the protection of their rights to due process, free development of personality, legal certainty, equality and protection of family, all of them allegedly violated by the refusal of a notary to accept the marriage request filed by the couples ; ii) Two independent inquiries of annulment were elevated by Procuradores Judiciales against the rulings of judges in which were accepted the requests to celebrate same sex marriages. The Public Ministry officers alleged that those decisions violated the due process; (iii) The plaintiff requests the constitutional judge to order the Registraduría Nacional del Estado Civil (National Civil Registry) the inscription of his marriage with his same sex partner; (iv) A couple conformed by a woman and a transsexual citizen requested by this action to cease the violation of their fundamental rights to equality, due process and free development of personality, which were violated presumptively by the decision of a judge to revoke their marriage certificate.
This tribunal formulated a legal question common to all of these cases in this way: is the celebration of marriage contracts between same sex couples, instead of a solemn innominate contract, in pursuit of overcoming the protection deficit declared by the Court in the Decision C-577 of 2011, a violation of the article 42 of the Constitution? It was concluded that an interpretation in which the same sex couples have to celebrate a solemn contract, that doesn’t configure civil marriage, conduces to inadmissible results regarding multiple topics like: (i) unmodified civil status, (ii) unaltered state of the hereditary order (iii) impossibility to subscribe capitulations, among others. In that order of ideas, no solemn, innominate or atypical contract, can produce the same personal and patrimonial effects as the civil marriage. Consequently, this contractual institutions that intend to formalize unions between same sex couples don’t overcome the deficit of protection identified in the decision C-557 of 2011. The Courts Plenary estimated that the civil marriage between same sex couples is a legitimate and valid way to materialize the constitutional principles and values, and a form to ensure the effectiveness of the right to conform a family and the human dignity, regardless sexual orientation or gender identity.