The Construction and Enactment of Same-Sex Marriage in Argentina

Abstract

This article examines how same-sex partnership recognition (SSPR) was enacted into policy in Argentina. It begins by looking at the history and structure of the lesbian, gay, bisexual, and transgender (LGBT) movements to explain why same-sex marriage, and not civil unions, became the primary goal. Next, it considers what the constitutional and statutory law was before the marriage bill passed and through which branches of government the law potentially could have been changed. Then it looks at how the LGBT social movement organizations have engaged with the three branches of government to advance the goal. Using an institutional lens, it then argues that elite allies and institutions amenable to change were critical to implementing the law recognizing same-sex couples. In Argentina, all three branches historically have had significant institutional powers to change the law, but lesbians and gays have had a hard time securing friends in these positions. Within this institutional framework, change was only possible after a significant number of allies—most importantly the President—supported same-sex marriage.

Notes

1. Nuestro Mundo and Eros, which together continued to publish leaflets throughout the city; El Grupo Profesionales, an organization dedicated to the scientific study of homosexuality; Safo, dedicated to representing lesbians; and Emanuel, a Christian group.

2. Although smaller in absolute numbers than the Brazilian movement, they probably are the same in relative size.

3. See http://www.clarin.com/diario/2009/11/07/um/m-02036208.htm.

4. For a critique of this position, see Merin (2002) and Wolfson (2004).

5. They could because Suntheim still retains his German citizenship and can marry in any European Union country, including Spain, which has recognized same-sex marriages since 2005.

6. Such a scenario did play out, for example, in the 2009 Arriola case when the high court ruled that the criminalization of the possession and consumption of small amount of marijuana was unconstitutional; it effectively legalized small drug use for the entire country. The legislature is currently redrafting their drug laws, and the executive branched stopped prosecuting such offenses.

7. The source insisted on anonymity because of the sensitivity of assessing the outcome of a case in litigation.

8. After the same-sex marriage bill passed in 2010, Maria Rachid was promoted to be President of INADI. In a political system such as Argentina's, where patronage networks run strong, she may have been promoted as a reward for helping pass this legislation, indeed demonstrating that it was an important initiative for the Fernandez de Kirchner administration.

9. Her change in party was less the result of her “jumping ship” but really coincided with the meltdown of the UCR as a viable political party.

10. The five largest political blocs in Argentina today are PJ-FPV (Frente para la Victoria), PJ (Peronismo Federal), UCR (Unión Cívica Radical), CC (Coalición Cívica), PRO (Propuesta Republicana). The two dissident party leaders were from the PJ and the PRO. Moreover, according to Bleta (2010) nearly all political parties in Argentina have suggested that they did not want this to become a partisan issue and divide the society.