Supreme Court ruling on same-sex marriage 

                                                                                                                                                                                                                                                                                                                                                                                      

  In a 97-page sentence, the majority of the plenary session of the Supreme Court (CSJ) exposes an ultra-conservative judicial thought  Nand cruelty with the legal claim that sought to declare two articles of the Family Code and one of the Code of Private International Law, which prohibits the marriage of same-sex couples in Panama writes  Rodrigo Noriega in La Prensa.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

This case began seven years ago, with two warnings of unconstitutionality to norms that prevented the recognition of equal marriages celebrated abroad.

After the long wait for the decision, the intention of the CSJ to deny the petition is clearly evident in the first pages of the ruling. When the procedural route of the two unconstitutionality warning appeals that initiated this case is made, the contributions of both attorneys who gave their opinion on the case are summarized, since they were two different files. The Administration Attorney, Rigoberto González, gave his opinion favorably on the request to declare the attacked regulations unconstitutional, while the then Attorney General Kenia Porcell, held the opposite opinion.

In the contributions made in this cause during the period of citizen participation, the majority correspond to lawyers with a strong religious vein; their opinions were favorably appreciated, while that minority in favor of equal marriage was presented in summary form.

The first comment of her own made by the rapporteur magistrate María Eugenia López Arias is questioning the admission of both warnings of unconstitutionality, one because it was supposedly presented very late, and the other, very early.

On page 35 of the ruling, it was stated that: “the Panamanian constitutional order does not recognize a fundamental right to marriage between people of the same sex. And it will be seen that it is not possible to conclude that it is given by conventional integration”. This argument is developed throughout the body of the statement.

On page 58, the highly orthodox content of the legal thought of the majority of this decision is revealed that the prohibitions of equal marriage: “are objectively and reasonably justified in the general interest of giving precedence to those unions with the potential to establish families, to give continuity to the human species and, therefore, to society”. In other words, the Court ignores that homosexual couples can also have children by a multiplicity of methods. Likewise, this logic means that heterosexual couples who do not have children would not be protected by constitutional law.

Perhaps one of the weakest arguments, and one that reflects the intention of the ruling, is on page 59, which states that the Court cannot create rights that are not in the constitutional text. It is insisted that equal marriage is a new right, but it is not: it is about the inclusion of a minority and excluded sector in the umbrella of an existing right.

Human rights
In an 18-page vote saver, Judge Ángela Russo de Cedeño presented a forceful essay on international human rights law, the jurisprudence and opinions of the Inter-American Court of Human Rights, and the evolutionary dynamics of family law, including the changing notion of family and the expansion of the concept of marriage.

For Russo, “there is no reason to deny this right to the person who wants to marry another of the same sex, if there is an affective bond that unites them, in the spirit of stability and permanence, in singular conditions, in the interest of having jointly a common life, a life project, with reciprocal support”. In addition, she responded to the argument of procreation as the foundation of marriage, saying that “it has been overcome, especially when there are currently scientific advances in reproductive medicine.”

After extensively reviewing the criteria and doctrines of International Human Rights Law, Russo points out that “as the State Organ in charge of safeguarding the fundamental rights and freedoms of every person who is under the jurisdiction of the Panamanian State, we are endowed with the power conferred on us by the Political Constitution and the law to interpret the regulations, always with the criterion that is the most favorable to every person”.