April 21, 2010
Don't cry, Argentina's activist judges
Posted by: Chris
A judge in Buenos Aires today upheld the validity of the first civil marriage between two women, rejecting the decision of another judge, Martha Gomez Alsina, who had set aside as "null and non-existent" the marriage between the two women, the newspaper La Capital is reporting.
This is the latest twist in quite the roller coaster ride for Norma Castillo and Ramona Arévalo, who were married after 30 years together, only to see their marriage declared "null and non-existent" by a judge acting at the behest of Roman Catholic lawyers. Now that judge's order has been struck down and a gay group is filing a civil and criminal complaint against the interfering judge for malfeasance.
It's the same pattern that followed Latin America's first gay marriage, also in Argentina, just last December, which was also later struck down by a second judge, acting at the behest of lawyers from the Catholic Church.
Unless jurisdiction is a loosey-goosey concept in Argentina, this sort of interference should subject the judges to ethics complaints, at a minimum. These are not appeals court judges, overturning the rulings of lower courts, but judges with entirely different jurisdiction responding to appeals to religion by a church that has no business claiming to be a moral arbiter of anything these days.
Don't expect to hear any condemnation of this very blatant form of judicial activism from the right. Just like conservatives here in the U.S. are marshaling forces to ask unelected judges to overthrow the will of the people on health care reform and financial regulatory reform -- and just as they already did on campaign finance reform. How will Republican senators question Obama's Supreme Court pick about "judicial activism" and keep a straight face?
According to the nationwide gay rights group, none of these annulments has any legal effect:
The Argentinian LGBT Federation reiterated that the ruling confirmed that "no" marriage between persons of the same sex has actually been annulled in the country, La Capital reported.
"The acts of these judges … besides being a new act of discrimination, do not bear any legal or procedural analysis," the Federation said in a statement. The group reiterated that "all marriages of same-sex couples are still valid and in force" and questioned the conflicting court rulings, saying that "being a judge does not entitle anyone to impose their religious beliefs to the rest of the population."
"They could not cancel any of the marriages because they do not have the legal authority to do so," said Maria Rachid, president of the Argentinian LGBT Federation. The group called for a ruling by the Supreme Court in these cases so that "these judges are no longer confusing society."
The question may be resolved before it even reaches the Supreme Court, since it appears the country's parliament may take up legislation as soon as this week that will clarify that marriage rights extend to same-sex couples.
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