Finally, same sex couples are a family under the ECHR!

Pie de la Cuesta, México

After a rather succesful judicial training workshop in Cuernavaca in conjunction with the Gender Equality Division of the Supreme Court (with experts and speakers including former judges of the Colombian Supreme Court, Judge Karen Atala, Paula Viturro, Isabel Cristina Jaramillo, Maria Mercedes Gomez and many more), time for legal updates from a beach near Acapulco.

Judge Atala who spoke about her own case before the Inter-American Commission highlighted the Commission´s communication to Chile (unpublished) which clearly finds Chile in breach of the Convention and notes that its Supreme Court acted in a discriminatory way in upholding a judicial decision depriving the judge of custody of her children based on her sexual orientation (terrible judgment). The Commission noted that this was not in the best interests of the child. This line of reasoning closely follows that of the Suzanne du Toit case (on joint adoption in South Africa, coincidentally concerning a judge in that judicial system),in which the Constitutional Court of SA found that it was clearly in the best interests of the children to have two loving same sex parents.

This week also saw the ECtHR in Strasbourg making an important decision on same sex equality and marriage. While the Court refused to oblige the State of Austria to provide same sex marriage (lamentably), it did find that same sex couples come under the protection of Article 8 (family life) for the first time. The Court stated at paragraph 93 of the Shalk and Kopf case:

The Court notes that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples (see above, paragraphs 27-30). Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraph 26 above).

94. In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

A victory of sorts and important in countries such as Ireland that have still to recognise lesbian or gay couples as a family since the constitutional protection of family is only afforded to married couples, a man and woman (Cf case of McD v. L decided by the Supreme Court in December). Many more sexual orientation cases are currently pending before the ECtHR including Chapin & Carpentier v. France. For a slightly old but very comprehensive list of case law on sexual orientation and gender identity see the following document prepared by Robert Wintemute, the amicus prepared by the same lawyer is available online through Scribd.(http://www.cesd.eu/materiale%20convegno13%20giugno/pdf%20x%20sito%20web/Robert%20Wintemute%20%28approfondimento%29_en.pdf)

This week,the National Center for Lesbian rights also highlighted its victory in the case of Christian Legal Society v. Martinez, in which the Supreme Court of the US held that Hastings Law School was correct to oblige Christian groups to comply with non-discrimination measures. The Christian group had argued that they should be allowed to discriminate and exclude LGBT members and non Christian members on First Amendment grounds. Horrid people.

In other news about horrid people, (more specifically the Pope), the US Supreme Court refused to hear an immunity claim regarding sexual abuse, the case will now be sent back to Oregon District Court. This week, the Pope also condemned the Belgian authorities´ investigation of sexual abuse claims stating that it was ´surprising and deplorable´and that the Church authorities should be allowed to investigate. Oh dear. Another public communications failure and another legal failure - hasn´t anyone informed Ratface that his investigations are far from effective and that really the CHurch is unwilling or unable and that States have positive obligations to investigate and prosecute child abuse? I guess not, or maybe he just really doesn´t give a damn. This is clear, in their arguments in the Oregan case where the Vatican has stated that Father Ronan was not an employee and that the Church weren´t even aware of his existence until recently(strange argument). Sounds like this Pope really meant his apology to abuse victims.

If this last part has been depressing, I suggest that you watch some Maggie Cho, especially her jokes about the Pope. Here´s a short citation from her Assasin Dvd to make you chuckle...

The Pope talks so much shit. The Pope was castigating the media for making gays look normal. YEAH, you're a real GOOD judge of normal, with your gold dress and your matching gold hat, living it up in the Vatican with 500 men surrounded by the finest antiques in the world! Queen, please! You live like Versace did!

That´s all from Mexico.