In this occasion, the Constitutional Court solved six accumulated “acciones de tutela” related to the celebration and registration of marriages for same sex couples by judges or public notaries, or the refusal to do so. Some of them where filled by the Ombudsman’s Office or one of its delegates, the rest of them were filled by the same sex couples.
Primarily, this Judicial Body considered that the General Ombudsman of the Nation had no legitimacy to present an “acción de tutela” orientated to prevent the celebration of a civil marriage between a same sex couple, pleading that it violated the legal order, because in matters such matters prevails the respect for the fundamental rights, the human dignity, the individual freedom and equality. For that reason, those actions were declared “improcedentes”.
Regarding the fundamental issues, the Court decided that the principles of human dignity, individual freedom and equality, implied that every human being could get married, according to his or her sexual orientation. The Court considered that celebrating a civil contract of marriage is a legitimate and valid way to materialize the constitutional principles and values and a way to ensure the effectiveness of the right to human dignity, individual freedom and equality.
The Court also considered that the innominate contracts, by means of which was pretended to solemnize and formalize the unions of same sex couples don’t overcome the protection deficit identified in the Decision C-577 of 2011. In terms of the article No. 113 of the Civil Code, the celebration of a marriage generates a series of legal effects both personal and patrimonial, those effects were not present in a civil innominate contract, situation that generated a discriminatory treatment between same sex couples and heterosexual couples.
Aiming to overcome the protection deficit identified in the Decision C-577 of 2011, guarantee the exercise of the right to contract marriage, shelter the principle of legal certainty, the Tribunal decided to extend the effects of the Decision to peers, i.e., to all same sex couples that after June the 20th of 2013: (i) had turned out to judges and notaries and had been denied the celebration of the civil marriage due to their sexual orientation (ii) had celebrated a contract to formalize and solemnize their bond, without the denomination nor legal effects of the civil marriage; (iii) had celebrated a civil marriage, but the National Civil Registry denied its inscription; and (iv) those who from now on formalize and solemnize their bond by celebrating a civil marriage. In those same terms, the Court declared that all civil marriages between same sex couples celebrated after June the 20th of 2013, have full validity as they are adjusted to the constitutional interpretation of the sentence C-577 of 2011.
For the Court , the judges who celebrated civil marriages between same sex couples, acted in the precise terms of the Political Constitution, in conformity with the constitutional principle of judicial autonomy, previewed in the article No. 229 of the Constitution and the international treaties of human rights. In that order, the Court warned the judicial authorities, the public notaries and the “registradores del Estado Civil” or those public servants that could take their places, that the decision has a binding quality, with inter pares effects, as it is exposed in the motivation of the sentence.
Finally, the Court exhorted the Adminsitrative Chamber of the Superior Council of the Judicature, the Superintendence of Notary and Registry and the National Civil Registry, to spread between judges and notaries, the present providence.