Legal Mobilization and the Road to Same-Sex Marriage in Argentina

Maria Gracia Andia, PhD

1. Introduction
In the context of rising judicialization of politics, Argentina presents a case that
is relevant and is worth our attention for the insights it provides to the phenomenon of
legal mobilization In this chapter, I explore the !G"# legal activism in Argentina that
led to the same$sex marriage legalization I briefl% anal%ze the factors that made this
group choose the courts, the impact of using the courts on the &ational 'ongress as well
as on the media coverage, and whether social mobilization $support structure$
(
made
an% difference on the impact
Argentina reformed its 'onstitution in ())* introducing some normative
developments that included a catalogue of new rights, called positive or second$
generation rights, and rights with collective impact including protection to the
environment, social$economic rights, right to health care and, rights related to
vulnerable+disadvantaged groups #he reform also introduced a new and special
procedural tool for vindicating those rights, this is the case of the -acci.n de amparo./
0

In fact, the individual and collective amparo has been a procedural tool that has been
used b% the diverse groups of civil societ% to bring their claims to the courts
1

(
'harles 2 3pp, #he 2ights 2evolution4 !aw%ers, Activists, and 5upreme 'ourts in
'omparative Perspective, 6'hicago4 7niversit% of 'hicago Press, ())89
0
#he amparo has created the possibilit% of bringing legal actions $summar% action$
when either an act or omission injures, restricts, alters, or threatens the rights and
guarantees recognized b% the 'onstitution, a treat% or a law, and also to defend new
rights with collective impact
1
'3!5, La lucha por el derecho: Litigio estratgico y derechos humanos 6"uenos
Aires4 5iglo :eintiuno, 0;;89, ()
(
2. Some theoretical background
As Michael Mc'ann in -2ights at <or=,/
*
who focuses on the broader legal
action that gives content and definition to the groups> claims and empowers the
disadvantaged group, I anal%ze how groups in Argentina mobilized on behalf of !G"#
individuals I also build on the insights of 'harles 3pp
?
b% examining the -support
structures/ for legal mobilization for this group
3pp demonstrates that the success of the rights revolution depended not solel%
on constitutional guarantees of rights, or even on judicial leadership, but most criticall%
on the public support structure for such rights @or 3pp, -support structure/ means
litigation$oriented law%ers organized to pursue rights, and grassroots organizations
prepared to wor= with them Ae emphasizes this factor and contends that previous
scholarship tends to leave it out or ta=e it for granted <e must pa% attention to non$
legal factors in the evolution of rights
2el%ing on Marc Galanter>s -<h% the -haves/ 'ome out AheadB/
C
I consider
how !G"# group $ a disadvantaged group in Argentina and Dhave nots> in Galanter>s
terms$ ma% obtain the advantages of repeat$pla%ers b% appearing freEuentl% in court
"asicall%, Galanter divides the litigant parties into -one$shotters/ and -repeat pla%ers,/
and identifies an apparentl% predictive variable 6litigant experience9 2epeat pla%ers
appear in court often and usuall% have the resources to pursue long$term interests #he%
also can anticipate legal problems, develop expertise, and have access to specialists
Fne$shotters do not enjo% the same advantages Galanter concludes that -the basic
*
Michael Mc'ann, 2ights at <or=4 Pa% 3Euit% !itigation and #he Politics of !egal
Mobilization 'hicago4 7niversit% of 'hicago Press, ())*
?
'harles 2 3pp, #he 2ights 2evolution4 !aw%ers, Activists, and 5upreme 'ourts in
'omparative Perspective 'hicago4 7niversit% of 'hicago Press, ())8
C
Marc Galanter, -<h% the -haves/ 'ome Fut AheadB 5peculations on the !imits
of !egal 'hange/ !aw G 5ociet% 2eview, ) 6()H*94 )?$(C;
0
architectural of legal s%stem creates and limits the possibilities of using the s%stem for
redistributive changes/ and that certain groups have advantages in litigation
In this wa%, Courting Social Justice: Judicial Enforcement of Social and
Economic Rights in the Developing World
H
too= the Euestions raised b% some of the
wor=s surve%ed in this chapter and others 6#ate and :allinder, 2osenberg, 3pp, Airschl,
Mc'ann and Galanter9 and shed light on them in a five$countr% empirical stud% which
belong to diverse legal traditions #hese scholars explain the -demand$side factors/
8
for
each countr%, which account for the turn to courts drawing especiall% on 3pp>s -support
structure for legal mobilization/ thesis As for the -suppl%$side factors/
)
the% consider
what 3pp ta=es for granted, namel% the institutional characteristics of the judicial
s%stem #his chapter ta=es into account the particularities of the Argentine judicial
s%stem for the demand and suppl% side factors
In that boo= as 'atalina 5mulovitz argues, the increase of the judicialization of
politics in Argentina ma% not be related to how people evaluate the judiciar%, but to the
opportunit% structure for ma=ing claims combined with the support structure of existing
law%ers 6in this case specialized in labor rights9 and a new structure of advocac%
organizations 6&GFs9 that led to the greater use of courts, m% arguments goes in the
same wa%
M% anal%sis combines aspects of the theoretical approaches used b% the authors
whose wor=s I briefl% examined in this section
3. The rganization and Mobilization !ackground o" L#!T $eo%le
H
:an Gauri and Daniel "rin=s, eds, Courting Social Justice: Judicial Enforcement of
Social and Economic Rights in the Developing World 6&ew Ior=, 75A4 'ambridge
7niversit% Press, 0;;89
8
#he demand for judicial services
)
#he suppl% for judicial services
1
!G"# groups were one prominent example of groups in !atin America that
attained some significant political achievements over the past decade or so &ormative
and societal developments, as well as other variables,
(;
have contributed to !G"#
activist groups in !atin America to accomplish several political achievements in the
0;;;s #he Egalitarian
((
Marriage !aw passed in 0;(; in Argentina is a major
development that is also part of this trend Argentina has a vibrant and well$organized
civil societ% After the democratic restoration in ()81, the discourse and language of
rights found fertile ground in which to grow, as did the groups of civil societ%
pressuring for an effective justice #he courts started to pla% a new role, a role that
included venturing into the realm of politics
(0
In Argentina there are several
associations, &GFs, and groups that address the issue of !G"# rights &evertheless,
onl% a few of them have a committed wor= relationship with the communit% influencing
the government agenda
(1

#he ()C;s and ()H;s were periods of the histor% well =nown for liberation,
mobilization, and brea=ing awa% from old models and structures At that moment,
different groups of the societ% got fired up to express themselves It was a time where
the ga% movement started to organize their mobilization in Argentina #he first example
of social mobilization was the organization called Fur <orld Group 6Grupo &uestro
Mundo9 founded in "uenos Aires in ()C), which was the first formal ga% organization
in !atin America #he second and main precedent was the Aomosexual !iberation @ront
(;
#o see the anal%sis of the other variables4 Javier 'orrales, Latin merican !ays: "he
#ost$Left Leftist% wwwamericasEuarterl%org+ga%$rights$!atin$America 6accessed
@ebruar% () 0;((9
((
#he 5ame$5ex Marriage law was called the Egalitarian !aw in Argentina
(0
Gretchen Aelm=e, Courts &nder Constraints: Judges% !enerals% and #residents in
rgentina 6'ambridge MA4 'ambridge 7niversit% Press, 0;;?9, *?
(1
MarKa 2achid 6President of the !G"# @ederation and former president of @7!A&A9,
Personal interview, @ebruar% (;, 0;((
*
6@rente de !iberaci.n Aomosexual4 @!A9,
(*
founded in ()H( In ()HC 6a time of
political violence and the %ear of the most virulent militar% coup9, those organizations
started to wea=en and eventuall% disappeared 'urrentl%, the two most active
organizations are the Argentine Aomosexual 'ommunit% 6'omunidad Aomosexual
Argentina4 'AA9
(?
and the !G"# @ederation
#he 'AA was the first association that legall% started in Argentina and the
second in !atin America
(C
At that moment, ten independent activist ga% groups across
Argentina joined the 'AA #oda% it is the oldest association advocating for !G"#
rights in the region #he organization is located in the 'it% of "uenos Aires, and it is
structured in diverse areas #he legal area $one of the most relevant in the association$
receives around (,?;; cases per %ear #he legal advice given in those cases is free
&evertheless, the% do not assume the legal representation of all the cases because it is
impossible for the association to afford those costs Aowever, occasionall% resorting to
the strateg% of using the courts, the legal area of the 'AA ma=es exceptions and chooses
some of those cases if its law%ers consider that the% might be a s%mbol and set
precedents for changes
#he most prominent goals achieved b% the 'AA have been related to obtaining
its legal entit%, and to be one of the =e% pla%ers in passing the 'ivil 7nion !aw enacted
b% the !egislature of the 'it% of "uenos Aires
#he enactment of the 'ivil 7nion !aw in "uenos Aires was the trigger for the
creation of the !G"# @ederation In 0;;( the 'AA presented a law proposal for civil
(*
5ee Patricio !ennard, -!a !ucha 'ontinua,/ Diario #agina '(, June 0C, 0;;)
Available at4 http4++wwwpagina(0comar+diario+suplementos+so%+($81($0;;)$;C$
0Chtml 6accessed March 8 0;((9 and Marcelo Manuel "enitez, -&estor Perlongher4 7n
militante del deseo,/ Available at4 http4++wwwelortibaorg+perlongherhtml 6accessed
March 8 0;((9
(?
Pedro 5ottile 6'oordinator of the 'AA !egal Area9, Personal interview, @ebruar% ?,
0;((9 and http4++wwwchaorgar 6accessed March 8 0;((9
(C
#he first legal organization in !atin America was in "ahia, "razil
?
unions in the 'it% of "uenos Aires, an initiative that was joined b% other organizations
#he law was passed in December 0;;0 as !aw (,;;* Fn Jul% (8, 0;;1, a couple L
member of the 'AA$ got a civil union under that law. #his successful accomplishment
was tremendousl% difficult to achieve, and showed some flaws in the articulation of the
!G"# organizations #he associations that participated in the -lobb%ing/ process of the
'ivil 7nion !aw were just the 'AA and the @7!A&A
(H
#he @7!A&A wor=ed ver%
hard in the legislative lobb% and spreading awareness of the law before and after it was
passed After that experience, the @7!A&A recognized that with the involvement of
other groups of the !G"# movement, the process would have been easier Joining
forces was a crucial necessit% if the% were going for a national law
#he context was good to embar= upon the struggle for a national law @irst, the
social and political environment was favorable 5econd, the positive effects of the law
exceeded the rights recognized in it #hird, 5pain approved a marriage law for ever%one
6without sexual distinction9 Precisel%, the 5panish associative model of support and
articulation, and the strateg% that the #riMngulo @oundation and the 5panish !G"#
@ederation used to achieve success in the 5panish 3Eualit% !aw, inspired the @7!A&A
#he 5panish social mobilization approach guided the @ederation>s organization and
strateg% #he 5paniard !G"# movement did not use the courts, but it was an example to
follow in the wa% the% organized a cohesive grassroots movement Indeed, Pedro Nerolo
LMadrid>s 'ouncilman and member of the 5panish 5ocialist Part%Obecame a close
friend and strong activist during the same$sex marriage campaign #he similar
historical, cultural and traditional roots made the passing of that legislation an example
to follow @or those reasons, the @7!A&A called for a meeting with different !G"#
organizations in order to explore common goals and establish a strateg% for the marriage
law #ogether, the% established contact with the 5panish !G"# @ederation to learn from
(H
@7!A&A is a lesbian rights association
C
their experience as an association and with struggling for the approval of the law In
Argentina, prior attempts to coordinate !G"# movement groups
(8
had not been
successful #herefore, the% anal%zed the similarities and differences between Argentina
and 5pain and tried to learn from the experience
5omething to point out is the conseEuence of passing the 7nion 'ivil !aw in the
'it% of "uenos Aires #he effects expanded to new aspects that were not initiall%
foreseen #his law not onl% recognizes some rights, but also legitimizes the -being
homosexual/ As the boo= )ueer *o+ili,ation
()
anal%zes, the law sends the s%mbolic
messages of what is and is not acceptable for societ% It was a public statement about a
group that had been invisible to the 5tate before 5ome lesbians told their groups about
the constructive reactions of their families and colleagues It is clear that -the use/ of
law, as a strateg%, was ver% effective in influencing cultural changes in the societ%
Additionall%, it was an efficient wa% to wor= with the media &ewspapers set up the
topic at the national level, mixing the words civil union and marriage #he right wing
groups and the 'atholic 'hurch expressed that marriage is just between men and
women, unli=e a civil union #he civil union issue went be%ond the borders of the 'it%
of "uenos Aires, where the law was passed, and triggered other debates 5ame$sex
marriage was not on the agenda of the !G"# communit% &onetheless, when the%
realized the cultural, social and political changes the ga% marriage law would bring,
the% decided to put marriage on top of the agenda
#hose responses provo=ed changes in how some organizations had been
wor=ing @or instance, the @7!A&A had focused aggressivel% on cultural changes, and
from that moment put its emphasis on loo=ing for strategies to achieve legal changes
(8
5ee4 Pathr%n A, 5i==in=, 5anjeev Phagram and James 2i=er, eds, Restructuring
World #olitics: "ransnational Social *ovements% -et.or/s% and -orms 6Minneapolis4
7niversit% of Minnesota Press, 0;;09
()
5cott "arcla%, Mar% "ernstein and Anna$Maria Marshall, eds, )ueer *o+ili,ations
L!0" ctivists Confront the La. 6&ew Ior=4 &I7 Press, 0;;)9
H
Along with other organizations, and through the @ederation, the @7!A&A started
wor=ing on the legal strateg% #herefore, five organizations 6Asociaci.n de #ravestis,
#ransexuales % #ransgQneros de Argentina, @7!A&A, &exo Asociaci.n 'ivil,
@undaci.n "uenos Aires 5IDA, and :FR Asociaci.n 'ivil9 founded the !G"#
@ederation in 0;;C #he% decided to create the federation in order to satisf% a concrete
demand4 to join forces to achieve their shared objectives #hose five groups had strong
trac= records for (? to 0; %ears on !G"# rights issues and grassroots commitments
with the communit%
Aside from that, the @ederation established five initial objectives4 (9 same$sex
marriage and adoption 6the strateg% was called -the same names, the same rights/9, 09
gender identit% for transsexual individuals, 19 antidiscrimination law, *9 sexual
education law, and ?9 the code of noncriminal wrongdoing
Above all, the fact that the @ederation is the most prominent advocate of the
movement in the countr% is a ver% significant objective itself Fther accomplishments
are, for instance4 having introduced the same$sex marriage to the government and being
able to set the agenda of sexual diversit%, having their own headEuarters and economic
independence @inall%, it should be said that the achievement of passing the same$sex
Marriage !aw 6within the campaign of -the same names, the same rights/9 is the most
visible and important one
Fther groups also form the Argentine !G"# movement In general, the% have
been constituted in the earl% ());s Aowever, almost all of them are members of the
@ederation In this wa%, though the% themselves are small and lac= a well$
institutionalized framewor=, being part of one biggest group with the same objectives
ma=e them stronger
&. 'ommon (eature) o" the L#!T Mobilization
8
In general, the leading groups of the !G"# social mobilization present some
common features #he% advocate for a progressive agenda 6eEual rights for minorities,
gender issues, abortion, among others9 and join forces with other organizations that are
supporters of Auman 2ights Moreover, their activists usuall% belong to an educated
middle class #hose activist groups count with law%ers, professors, academics, graduate
and undergraduate students among their members According to the reformulation of
Marc Galanter>s theor% these activists ma% be characterized as the -haves/ who fight for
a -progressive agenda/ All these statements do not mean to stereot%pe !G"# people
into well$educated, middle class individuals with progressive ideas It should be noticed
that there are a ver% important number of !G"# people living in bad conditions with no
economic resources, unemplo%ed and with no access to education
#here is something relevant to indicate regarding the wording and discourse of
the movement At the beginning, the activists identified themselves as the ga%
movement, however, in the last decade the abbreviation !G"# was the one chosen b%
them #hat change shows the growth as well as the openness of the movement
*. The 'on"lict) and +i""erence) ,ithin the Social Mo-ement
<ithin the social movement there are different points of view regarding some
issues that matter to the !G"# communit% #he most relevant organizations 6'AA and
the @ederation9 have sometimes had different agendas and activism approaches #he
'AA has been criticized b% other organizations for different reasons @irst, some
lesbians from other groups have felt that the% are not welcome to this organization
#hose women considered that the 'AA in realit% is closed for lesbians
5econd, although the communit% ac=nowledges the important wor= done b%
'AA at the beginning of the !G"# movement, some members of the !G"# movement
understand that this group has become a ver% self$oriented organization reduced to
)
small groups of activists Indeed, the majorit% of %oung people are politicall% active in
other organizations Moreover, from the activities of the 'AA it is easil% inferredOas
some members of the communit% told meOthat it is an urban$centralist organization
#he interior of the countr% does not come within the 'AA>s objectives &evertheless,
the 'AA members have done an excellent job at the international networ= level with
other international organizations in ma=ing the !G"# Argentine movement =nown
abroad
Moreover, the% are considered too cautious and politicall% correct or pro$s%stem
in their fights It is interesting to point out that for the 'AA this cautiousness is a virtue,
while for other activists it is not #he 'AA believes that it is fundamental to do realistic
cost$benefit anal%sis in ever% action because the defeats are too frustrating for the
activists #he% trust in incremental changes
Fn the other hand, some members of the !G"# communit% consider that the
Government influenced the political action of the @ederation It has been criticized for
not being enough independent in its financial aid sources and agendas #he% argued that
man% of the members of the @ederation, including its President, MarKa 2achid, wor=ed
activel% at the I&ADI 6she is now a representative at the !egislature of the 'it% of
"uenos Aires9 #he fact that she has was even the vice president of the I&ADI
demonstrated that the @ederation and I&ADI were 6at least while Maria 2achid was
there9 -part/ of the -same structure with agreed goals,/ one from official and the other
from the grassroots perspective
In contrast, members of the @ederation understand this situation as an asset In
this wa%, the% explain that it is the @ederation that has introduced a diversit% agenda into
government issues According to them, before this circumstance the Government did not
have an% agenda for sexual diversit% Moreover, the% understand that with the help of
(;
the I&ADI the% ma% reach out for more support in the interior and spread their
activities Indeed, the @ederation has put emphasis on having presence in Argentine
provinces
In fact, at the beginning the% did not agree with the same sex marriage
legislation battle #he 'AA believes the institution of marriage is patriarchal, sexist,
chauvinist, and not secular in name In addition, the% thought it was impossible to reach
that goal in our countr% because of the traditional and s%mbolic meaning of marriage,
and especiall%, after their experience with the national law proposal of civil unions @or
that reason, the% thought that it was more convenient not to raise the expectations
&evertheless, there are some contradictions here, since the national civil union
project subscribed b% them is far more ambitious than the same$sex marriage !aw
supported b% the @ederation and then passed b% the 'ongress !ater in the process the%
publicl% joined and support the activism same$sex Marriage !aw
.. The Strateg/0 1the Same 2ame)3 the Same Right)34 a Su%erior and
'ommon b5ecti-e $re-ailed
As I mentioned before, in the beginning the !G"# social mobilization did not
include among their demands same$sex marriage legalization #here were other
objectives and struggles to fight for #he most used wa%s of the different groups to raise
their voices were several4 publications in journals and popular newspapers, seminars,
ga% parades, lobb%ing, etc !ater, and particularl% after the constitutional reform in
())*, the% graduall% introduced in their strateg% -the use of the courts/ $more
aggressivel% after the approval of the 'ivil 7nion !aw in the 'it% of "uenos Aires #his
law boosted the idea of a legal change and its s%mbolic -revolution/ in the whole
societ%
((
#he 'AA started with the use of courts b% bringing a strategic case before the
constitutional reform #he first and most relevant case with broad repercussions was the
extraordinar% appeal and complaint filed b% the 'AA to the 5upreme 'ourt in ())(4
Comunidad 1omose2ual rgentina c3 Resoluci4n 5nspecci4n !eneral de Justicia s3
personas 6ur7dicas y recurso de hecho
0;
#his lawsuit sought to overrule the prior
decisions that ratified the denial of the legal entit% to the association b% the General
Inspection of Justice 63xecutive Power9
Although the 5upreme 'ourt declared the file inadmissible, the arguments of the
minorit% and the later granting of the legal authorization b% the 3xecutive Power with
its impact made this lawsuit ver% relevant In this fashion, that case opened the door to
other legal challenges, such as the lawsuit brought to the 5upreme 'ourt b% the
Asociaci.n !ucha por la Identidad #ravesti$#ransexual 6A!I##9 fifteen %ears later #he
A!I## was struggling for the legal and social recognition of transvestites as a uniEue
identit% and citizens with full rights #he 'onstitutional 2eform has %ielded interesting
and important arguments to ma=e a case in favor of eEualit% and diversit% #he A!I##
presented an extraordinar% appeal to the 5upreme 'ourt and filed a complaint against
the #ribunal of Appeal decision Fn June 0), 0;;8 the 5upreme 'ourt overruled the
'AA decision and set an important and visible precedent #his court decision came
while an important transvestite activism was ta=ing place Lthe first national parade of
travesties, transsexuals, and transgender
#he composition of the 'ourt was different in those cases In the second
decision, there were onl% two Justices from the old 'ourt4 'arlos @a%t and 3nriEue
Petracchi
0(
5ome scholars have pointed out a significant feature to this stud%4 the
0;
'5J&$@allos: 1(*4 (?1(
0(
Fn December (8, 0;;C, law 0C,(81 reduced the number of the Justices to five At the
moment, there are still seven justices
(0
conservatism of the jurisprudence of the 'ourt of the ());s 2oberto Gargarella
00

explains how the majorit% of the 'ourt decisions were conservative showing a strong
defense of authoritative and traditional morals #he renewal of the 'ourt meant more
independence from political power and brought some positive features4 more diversit%
in thin=ing, religion, and gender 'urrentl%, not all the justices are 'atholic In this
fashion, two women were appointed4 one of them is =nown for being feminist and
atheist
After those significant cases, I anal%ze the first legislative achievement, which
encouraged the use of legal strategies b% the !G"# social mobilization @ollowing the
recognition of the 'AA as a subject of rights, in December (0, 0;;0 the !egislature of
the 'it% of "uenos Aires passed the 'ivil 7nion !aw #his law legall% recognized a
union between two individuals not ta=ing into account their sexual orientation
Argentina was the first countr% in !atin America with this t%pe of legislation
#his law rules several rights for ga% partners such as the legal recognition of
homosexual couples, the extension of social securit% benefits, health insurance,
subsidies, and social programs, the option of ta=ing loans jointl%, the license of one
member to ta=e care of the other in the case of either illness or death, preferential visits
in the case either of hospitalization or imprisonment, and the power to decide over the
health issues of the other spouse, among other &otwithstanding, the scope of this law is
ver% limited because the attribution to legislate 'ivil !aw 6in this case4 civil marriage9
corresponds to the &ational 'ongress #he -big/ issues that the civil union does not rule
are regarding patrimonial assets and adoption, among others
00
2oberto Gargarella, -DespuQs del diluvio 3l perfeccionismo conservador en la nueva
jurisprudencia de la 'orte 5uprema 6());$())H9,/ Desarrollo Econ4mico 18, no (*)
6Apr $ Jun, ())894 *1)$*?C
(1
#he law proposal was written b% Graciela MedinaOthe 'AA legal advisorLand
promoted with determination b% the 'AA #he @7!A&A also contributed in lobb%ing
to pass the legislation In this case, the !G"# communit% ac=nowledged the 'AA>s
efforts #he 'AA strategicall% decided where and when to present the law proposal #he
!egislature of the 'it% of "uenos Aires and the %ear 0;;0 were the right moment and
place Additionall%, the Ma%or of the 'it% of "uenos Aires at that moment, AnKbal
Ibarra, had a positive opinion with respect to the civil union
After the 0;;( Argentine crisis, there was a collapse of political parties and a
proliferation of small ones #he bipartisan s%stem disappeared #he !egislature was
divided into several small parties and was formed b% legislators with ver% different
bac=grounds Part% discipline did not exist Moreover, the number of legislators was not
too big4 ?) Moreover, the 'onstitution of #he 'it% of "uenos Aires is the onl% one
within the countr% that establishes sexual orientation as a suspect classification in cases
of discrimination In this context, there was a better position to persuade legislators to
pass the law #he conditions were there to push for polic% advancements in this area
According to this scenario, the 'ivil 7nion !aw project had good chances to be passed
b% the !egislature of "uenos Aires #he debate on the floor too= five hours #here were
0) votes in favor and ten against
@ollowing the experience of the 'it% of "uenos Aires, the province of 2Ko &egro
approved a 'ivil 7nion !aw on December (H, 0;;0 !ater, the 'it% of 'arlos Paz Lin
the Province of 'ordoba$ passed the law for freedom of consciousness with (0 votes in
favor and six against on &ovember 01, 0;;H Fn Ma% ?, 0;;), in the 'it% of 2io I:
$Province of 'ordoba$ the cit% councilors followed the same path voting unanimousl%
#he strateg% of achieving local civil union laws in either several cities or provinces, and
later a national civil union law instead of national same$sex marriage law was planned
(*
b% the 'AA @irst of all, the% were loo=ing to end with the hegemon% of the institution
of marriage, as it has been =nown 5econd, their aspiration was an integral modification
of the institution of marriage, including the name &evertheless the experience of the
'it% of "uenos Aires was successful and boosted !G"# communit% activism, it also
showed the flaws of the social mobilization and the lac= of union and coordination
among the different organizations of the communit% Also, this situation was an
excellent training to understand the d%namics of the legislators and to anal%ze the
arguments of the opposition and the 'hurch
Fn one hand, the unexpected positive repercussions as well as the faults of the
movement that came to light on that process drove the creation of the !G"# @ederation,
formall% constituted in 0;;C, with one clear objective, among others, to push the
promulgation of the same$sex marriage using all the tools at hand Fn the other hand,
facing the same circumstances, the 'AA presented a project for a national civil union
law in 0;;? but lost parliamentar% status @rom that moment, the 'AA strateg% changed
its course until the whole !G"# social mobilization agreed on the same agenda
It should be said that there were some previous proposal for those t%pes of laws
In the ());s, the association Ga%s for 'ivil 2ights tried to promote a proposal for civil
marriage with no results In ())8, the 'ongresswoman, !aura Musa from Affirmation
for 3galitarian 2epublic 6A2I9, wrote a law proposal for civil unions, however it lost
parliamentar% status Margarita 5tolbizer, from the 2adical 'ivic 7nion 67'29,
presented the same proposal in 0;;; #hen, over again !aura Musa tried in 0;;0 and
0;;* In 0;;?, the not %et constituted @ederation but in process and the 'ongressman
3duardo Di Pollina from 5ocialist Part% introduced a project for a same$sex marriage
law #his project was countersigned b% others legislators from several political parties
2egrettabl%, it lost the parliamentar% status and the representative ended his tenure
(?
#he battle to either pass a new whole institution that rules the Argentine famil%
or modif% the existent marriage law b% giving access to marriage to homosexual couples
had alread% been started at the end of the ());s @acing this scenario, the !G"#
@ederation decided to use another ver% powerful tool for minorities, the courts #he
judicial decisions are important because the% set precedents Lnot binding in our s%stem$
but the% send broader s%mbolic messages to societ% about what is and is not
acceptable
01
@urthermore, lawsuits would generate media attention, can educate the
public and gain some leverage #he% focused on using all the possible tools at hand to
achieve the same$sex Marriage !aw #he movement considers that this legal
accomplishment s%nthesizes man% fights into one It is a s%mbolic claim because it
means to eEualize this minorit% to the whole societ% in several aspects #he law helps
construct some identities, persons and families as -normal,/ while others are deemed
-deviant/ #hose who do are include in those -legal definitions/ are denied basic rights
to which others are entitled
0*
#he @ederation was prepared to fight that battle #he
social mobilization $support structure$ that the% had built was read% to go to courts
#he% have built a -haves/ organization able to lead, support, and follow up on the cases
MarKa 2achid too= the political decisions of the group and pointed out the plan
to follow #he% were determined to use courts to advance the public polic% agenda
7nder her decisions as the president of the @ederation, there were a group of law%ers
who had been wor=ing on the strategies of the cases and other members wor=ing on
their media repercussion, and the% also had the support of the I&ADI
#he strateg% was to first present three t%pes of amparos 3ver% amparo has had
particular features ta=ing into account who were the people as=ing for the right to
marriage #he approach loo=ed for involving different groups of the societ% $political,
01
Mar% "ernstein and Anna$MarKa Marshall ,-#he 'hallenge of !aw,/ in "ernstein,
Marshall, and "arcla%, )ueer mo+ili,ation: L!0" ctivists Confront the la.% H
0*
"ernstein and Marshall, -#he 'hallenge of !aw/
(C
cultural$ and having impact at national and local level from groups from the center and
from the peripher% In each case, the @ederation anal%zed the pros and cons of ever%
couple, the visibilit% and the empath% with the societ% #he @ederation prepared and
coached them for the media discussion and possible debates #he% needed to =now how
to publicl% and precisel% defend same sex marriage It could not be a random couple
that did not understand and support the movement claims #he 'ivil 7nion !aw opened
a window of opportunit% #he% could not miss it
#hose lawsuits were brought to the 'ivil #ribunal ta=ing into account the object
of the demand Fn @ebruar% (*, 0;;H, 'laudia 'astro L'oordinator of the @7!A&A$
and MarKa 2achid went to the 'it% 'ouncil as=ing for an appointment in the 'ivil
2egistration Fffice to get married #he civil servant official denied the reEuest, arguing
that the 'ivil !aw does not allow her to celebrate a same sex marriage #he 'ivil !aw
reEuires the consent of a woman and a man 6articles (H0 and (8;, 'ivil 'ode9 At that
moment, it was drafting a -marriage certificate/ with the witnesses of the failed
marriage #he witnesses were4 former President of I&ADI, MarKa JosQ !ubertino, Aouse
2epresentatives, 3duardo Di Pollina 6P59, Marta Maffei 6A2I9, and 5ilvia Ausgburguer
6P59, and Journalist Fsvaldo "azMn #his unsuccessful celebration of marriage had a
political hint #he% wanted to give high visibilit% to this first presentation
#herefore, MarKa 2achid and 'laudia 'astro brought the first amparo to the
&ational 'ivil #ribunal of @irst Instance 6Juzgado &acional de Primera Instancia en lo
'ivil9 5ome law%ers and an interdisciplinar% group of professionals who belonged to
the @ederation, led b% Gustavo !.pez, @lorencia PrMvetz, and AnalKa MMs, drafted their
lawsuit Judge MarKa Ffelia "acigalupo ruled against the couple
0?
#he claimants
appealed to the &ational 'hamber and then went to the 5upreme 'ourt Aowever, after
0?
5ee4 http4++wwwagmagazinecomar+indexphpBId&otS(188 and
http4++wwwagmagazinecomar+indexphpBId&otS8)8 6accessed March 0 0;((9
(H
the passing of the Egalitarian Marriage !aw the case was declared moot b% the
5upreme 'ourt in August 0;(;
0C
#he second reEuest for a date at the 'ivil 2egistration Fffice was sought b% a
couple of artists, 3rnesto !arrese and Alejandro :illalba on June 0H, 0;;H #his
presentation involved the cultural and artistic communit% of the 'it% of "uenos Aires
#he parties of this case were a soap opera actor, 3rnesto !arrese, and an actor manager,
Alejandro :annelli #he idea of a soap opera actor getting married made this celebration
more familiar and brought the same$sex marriage matter to the people Additionall%, the
witnesses were a renowned actor L"o% Flmi$ and a famous actress LMercedes Moran,
former President of I&ADI $MarKa JosQ !ubertino, and Patricia <alsh $ Aouse of the
'it% of "uenos Aires 2epresentative #he refusal, based on the previousl% written
fundamentals of that demand, led to an amparo #he lawsuit was presented again to
MarKa Ffelia "acigalupo>s #ribunal
#he last of the first series of those amparos
0H
was one in the interior of the
countr% on @ebruar% (8, 0;;8 #he% are members of :FR, an association for !G"#
rights located in 2osario &either one of the couple of MartKn Peretti 5cioli and Fscar
Marvich obtained a favorable answer from the 2egistration Fffice #he witnesses of that
denial were people from the political and artistic spheres Among them, President of the
'it% 'ouncil of 2osario, Miguel Namarini, 'it% 'ouncil 2epresentatives, Pablo 'olono
and 'arlos 'omi, local legislators of 5anta @e, !ucrecia Aranda and Alicia GutiQrrez,
and &ational Aouse 2epresentative :er.nica "enas along with 5ilvia Augsburger,
President of the 5ocialist Part% at the &ational Aouse of 2epresentatives Aence, the%
also brought an amparo to the courts #he local justice of the 'it% of 2osario studied the
0C
'5J& $ 2 ); R!I: 2ecurso de hecho 2achid, MarKa de la 'ruz % otro c+ 2egistro
&acional de 3stado 'ivil % 'apacidad de las Personas s+ medidas precautorias,
8+0*+0;(;
0H
5ee4 http4++agmagazinecomar+indexphpBId&otS0)0; 6accessed March ? 0;((9
(8
case and ruled against the claimants> demand 6Judge Graciela Abraham of #he 'ivil and
'ommercial #ribunal &umber 5ix located in the 'it% of 2osario9 #he 'ivil and
'ommercial &ational 'hamber of Appeal 65ala III9 ratified the first instance decision
and as=ed the 'ongress for a decision on this issue
#hose amparos at those jurisdictions have not obtained favorable court
decisions In fact, the cases4 *ar7a Rachid and 8anelli had waited in the 5upreme 'ourt
until the% were declared moot after the sanctioning of the law &evertheless, as Mc'ann
has explained, even though litigation can be unsuccessful, rights$based strategies further
social movement goals Indeed, the great ramifications of those cases gave the right
push to present once again a project of same$sex marriage to the Aouse of
2epresentatives jointl% with 2epresentatives Di Polina and 5ilvia Augsburger from the
5ocialist Part%, on April 1;, 0;;H In the same line, in Fctober 0;;H, 5enator :ilma
Ibarra presented a project of her authorship also with the support of the @ederation in
the 5enate 5imultaneousl%, MarKa JosQ !ubertino, presented another initiative through
the 3xecutive Power
After the above cited litigation experiences, the @ederation decided to change the
strateg% a little bit and sued at different jurisdictions #he relevant 'ourt of
Administrative !aw 'laims was selected according to the parties of the lawsuit
6individuals v the 'it% of "uenos Aires9 #he people of the @ederation had been told
that the judges of that jurisdiction were %ounger, less prejudiced and less ris= averse
08

In Marc Galanter>s words the !G"# social mobilization had been developing the
expertise of -repeat pla%ers/
0)
In fact, the outcomes confirmed the aforesaid opinion
'onsidering that the Government of the 'it% of "uenos Aires would appeal
given their conservative ideolog%, the @ederation>s objective was to bring the cases to
08
MarKa 2achid Personal interview, @ebruar% (; 0;((
0)
Marc Galanter, -<h% the -haves/ 'ome Fut AheadB 5peculations on the !imits of
!egal 'hange/ La. 9 Society Revie. ), 6()H*94 )?$(C;
()
the 5upreme 'ourt A favorable decision would have been expected according to
previous precedents and bac=ground of this &ational 'ourt In the 'ontentious$
Administrative jurisdiction the new legal cases achieved favorable decisions In the first
amparo,
1;
nobod% thought that the Government of the 'it% was not going to appeal It
was a reall% a surprise #hat was a good indicator of the favorable political environment
#herefore, those partners4 Alex and JosQ MarKa, and others li=e Jorge and
Damian,
1(
and, &orma 'astillo and 2amona ArQvalo
10
got married After those
successful experiences, there were proliferations of judicial presentations
11
#hose
circumstances were widel% covered b% the media 6newspaper, #: shows, radios and
magazines9 with a supportive point of view
Along with this positive juncture, the @ederation spread the news, encouraging
ga% couples throughout the countr% to bring their cases to the courts In this fashion, the
@ederation provided for free legal advice to couples in order to present their amparos
#housands of reEuests arrived to the organization #he @ederation built a networ= with
different law%ers across the countr% that wanted to volunteer their services #he demand
was overwhelming #he @ederation was not tr%ing to judicialize all marriage
celebrations #he% intelligentl% used this tool to pressure and persuade the 'ongress
#he% were aiming for a new marriage law Aowever, the wa% to get married was not
eas% for an% of these cases #here were several deliberations with respect to the validit%
of those marriages In fact, some of those invalid reEuests were channeled through the
courts
Going bac= to the second group of those three amparos, I overview one of the
most s%mbolic cases for the social mobilization goals4 the case of Alex @re%re and JosQ
1;
@re%re Alejandro '+ G'"A 5+mparo 6Art (* ''A"A9, 3xp 1*0)0 + ;
1(
"ernath Damien Ariel % otros '+G'"A 5+mparo 6Art (* ''A"A9, 3xp 1C((H+;
10
'astillo, &orma 3dith % otros '+G'"A 5+mparo 6Art (* ''A"A9
11
'anevaro, MartKn % otro '+G'"A 5+mparo 6Art (* ''A"A9, 3xp 1C*(;+;
0;
MarKa Di "ello
1*
#his case has some interesting characteristics #he% are activists from
AID5 "uenos Aires @oundation and Argentine 2ed 'ross and Positive 3ffect,
respectivel% Moreover, the% live with AI:$AID5 As with all the other couples, the%
went to the civil registration office as=ing for a date on April 00, 0;;) and it was
denied A month later the% sued against the 'it% of "uenos Aires 6an amparo9 #he
judge, Gabriela 5eijas 6#ribunal &umber (? on 'ontentious$Administrative9 ruled in
favor of the claimants 5he declared the unconstitutionalit% of the 'ivil 'ode articles
6(H0 and (889
#he 'it% of "uenos Aires did not appeal #hus, res 6udicata gave them a vested
right to get married According to the judge>s order, the% were going to get married on
April ( #hat date was selected as a political statement since is the international da% of
the struggle against AID5 and an% =ind of discrimination Aowever, a wee= later the
law%er @rancisco 2oggero motioned for preliminar% injunction to nullif% 5eijas>
judgment with the legal representation of the 'atholic !aw%ers 'orporation #he judge
of the &ational 'ivil #ribunal 6&umber 8?9, MarKa Marta G.mez Alsina, ruled in favor
of 2oggero>s claim and suspended the marriage celebration
1?
2oggero stated that the
!G"# communit% was loo=ing for tenacious judges at hand in bringing the cases to the
administrative jurisdiction
#he arguments of this court decision were that Judge 5eijas did not have either
jurisdiction or competence on subjects ruled b% the 'ivil 'ode Indeed, the former
demands for getting married in the civil jurisdiction were dismissed #he &ational
'hamber ratified the previous verdict on December (, 0;;) As a conseEuence, the
official of the 'ivil 2egistration Fffice followed the prior mentioned civil judgments
1*
@re%re Alejandro '+ G'"A 5+mparo 6Art (* ''A"A9, 3xp 1*0)0 + ;
1?
@rom the legal point of view, this legal action was highl% Euestioned because the
person who promoted was not part of the relationship Ae was a third part% whose rights
or interests were not being infringed
0(
and decided not to celebrate the marriage In this wa%, having two contradictor%
sentences, the General Attorne% of the 'it% made a presentation to the 5upreme 'ourt
#hat presentation was turned down
Given these circumstances, the @ederation loo=ed for a province in which it was
possible to observe the judicial decision #he Governor of #ierra del @uego, @abiana
2Kos, had alwa%s expressed her approval of same$sex marriage and assented to support
the @ederation strateg% #hus, the @ederation along with the I&ADI organized
ever%thing in absolute secret to travel to 7shuaia, #ierra del @uego and ma=e possible
the celebration of the marriage Alex and JosQ MarKa went to 7shuaia and sta%ed there
for two wee=s #he% changed their legal address #herefore, after being rejected b% a
'ivil 2egistration Fffice of that province the% filed an administrative complaint
@inall%, Governor, @abiana 2Kos, authorized the celebration of the marriage following
the 5eijas> judicial decision and endorsing the law proposal of same$sex marriage Alex
and JosQ MarKa finall% got married on December 08, 0;;) #hat marriage was the first
same$sex marriage in !atin America
1C
6. The L#!T Mo-ement be/ond the 'ourt). The Time "or a Legi)lati-e
Agenda0 Egalitarian Marriage Re"orm
#hose cases had huge media impact and provo=ed debates in the whole societ%
#he debate was across all =inds of #: shows4 political programs, interview programs,
tal= shows, gossip shows, and recreational programs #he same was happening on the
radio and on social networ=s li=e @aceboo= and #witter #he stories occupied the front$
page of newspapers, and the news websites had a special tab with the label -ga%
1C
@rom a legal standpoint, the validit% of the marriage was highl% contested #he ruling
of Judge 5eijas did not oblige Governor @abiana 2Kos, because her court rules within a
different jurisdiction Also, the change of the legal residence did not respond to an
actual event but onl% for the purpose of the marriage celebration
00
marriage/ It was an issue not onl% discussed in academia and among interested people,
but also at ever% =itchen table and coffee shop in Argentina
#he issue was finall% on top of the public opinion>s agenda At that moment,
:ilma IbarraOAouse 2epresentative from the 3ncounter for Democrac% and 3Eualit%
Part% and President of the General !egislation 'ommissionOjointl% with Juliana Di
#ullioLfrom the Peronist Part% and President of the @amil%, <omen, 'hildren and
Adolescence 'ommission of the Aouse of 2epresentativesLput the issue on the list of
items to debate in the plenar%, on Fctober 0), 0;;) #hat decision was ta=en between
Ibarra, Di #ullio, Augsburger and MarKa 2achid, ta=ing into account the momentum
generated b% court decisions and waiting for the right moment to do it #he Plenar%
'ommission was expected to discuss two projects4 one introduced b% Ibarra in 0;;8 and
the other drafted b% 5ilvia Augsburger #hat was the first time that the 'ongress dealt
with a taboo topic for governmental institutions
#he @ederation did an important wor= insisting to ever% representative to attend
the 'ommission session Fn Fctober 0), 0;;), the Plenar% 'ommission reached the
Euorum and debated the projects #here were several spea=ers 2epresentatives
Augsburger and Ibarra explained and defend their initiatives as well as the president of
the I&ADI #he constitutional law experts 2oberto 5aba and AndrQs Gil DomKnguez
presented their arguments as well
#hen, the @ederation along with the representatives established a list of 0;
spea=ers in favor of and against the drafts 5paniard activists Antonio Poveda and Pedro
Nerolo, constitutional law experts, 2oberto Gargarella and JosQ Miguel Fnaindia,
Journalist Fsvaldo "azMn, Ps%chiatrist Alfredo Grande, and the President of the 'AA
$'esar 'igliutti$ spo=e in favor of the initiative #he 'AA expressed its support of the
same$sex marriage project after the failure of the civil union as an !G"# communit%
01
proposal After two intense da%s of debate, it was believed that there were real
possibilities to obtain a commission ruling in order to discuss the drafts on the floor
Aowever, the 'ivic 7nion 2adical 67'29 and @ront for the :ictor% 6@P:9
1H
did not
give Euorum #he explanation seems to be the President>s impending visit to the Pope
scheduled for two da%s after
<ith the June 0;;) legislative elections, the composition of the 'hamber was
going to change, having a more conservative presence #hus, the chances of debating
the project and obtaining the necessar% votes to approve the law b% the Aouse of
2epresentatives were ver% low At the beginning of the congressional sessions in March
0;(;, the @ederation called a press conference in which it as=ed for support for the
same$sex marriage drafts in order to extend the recognized rights to some couples
through the courts to all the !G"# communit% across the countr% #he =e% actors of the
Aouse of 2epresentatives were at that conference
After these demonstrations, Ibarra, President of the General !egislation
'ommission at that moment, and 'laudia 2ucci, who had just become the new
president of @amil%, <omen, 'hildhood, and Adolescence, called for a plenar%
commission session on March 0?, 0;(; Fnce more, Ibarra and Augsburger presented
their drafts for deliberation @or a second time, the same spea=ers of 0;;) expressed
their opinions In addition, the new president of I&ADI, 'laudio Morgado, and the
judge of the first favorable decision, Gabriela 5eijas, presented their arguments
#he sessions in the commission were an excellent picture of the situation #he
room was divided in two In one area of the room were the flags and signs of the !G"#
movement with words and phrases li=e -eEualit%,/ -the same rights with the same
names/ Fn the other side of the room, signs with drawings of families and the words -I
want a mom and dad/ #he respect and civilit% of the attendants were admirable In that
1H
#he @P: is a Peronist Part% coalition
0*
room the two groups were tolerant, although the% were clearl% uncomfortable with each
other In an% case, and especiall% remembering Argentina>s virulent histor%, it was a
civic and democratic celebration Fn April (?, 0;(; the Plenar% 'ommission signed a
ruling of the majorit% giving the green light to the draft to be discussed on the floor
#here was also a ruling of the minorit% proposing a new concept of -famil% union/
#he general session at the Aouse of 2epresentatives was scheduled on April 08,
0;(; #he agenda of the debate established other previous issues to the deliberate before
the civil marriage law modification #his complicated the strateg%, as there were
politicall% conflictive issues that the Peronist Part% wanted to avoid #he same$sex
marriage issue, although originated in 'ongress b% some independents and socialists
representatives, got an important bac=ing and support from the Government 6from the
Peronist Part%9 and its legislators "ut due to those other issues that were supposed to be
treated before, the Peronist bloc and its allies did not give a Euorum to deliberate
Although their strateg% was disrupted and divided b% this political fight, the @ederation
vigorousl% called on its supporters to not ma=e this situation helpful to the opposition
@inall%, a special session to discuss the drafts was called Fn Ma% *, 0;(;, the
Aouse of 2epresentatives approved the law #he session started at 041; pm and lasted
over twelve hours without interruptions In a remar=able da% for 'ongress, there were
0*; interventions and the final vote ended with (0C in favor of the same$sex marriage,
((* against it, and onl% four abstentions It was a ver% civilized debate in which respect
and tolerance mar=ed the debate and deliberations
After this accomplishment, the @ederation started to lobb% the senators in order
to persuade them to vote the law #he 5enate presents different features from the Aouse
of 2epresentatives #here are fewer people 6H09, and thus it is easier to get in touch with
them personall% In addition, the% are more visible and =nown In the 5enate it is more
0?
common to find prominent political figures #hese characteristics ma=e it easier to ma=e
them sociall% accountable In fact, the constituenc% identifies more easil% with its
senators and that is not true about its representatives in the Aouse, where there are 0?H
people Moreover, the 5enate is far more conservative than the Aouse 5enators
represent the local states> constituencies that are much more traditional and religious
than the constituenc% of the 'it% of "uenos Aires and its surroundings
At the same time, the opponents of the 'ivil !aw modification intensified their
activism and demonstrations against the law proposal #he 'atholic 'hurch had some
severe statements against the !G"# communit% and the people who support its
struggle
#he strateg% of the !G"# movement incorporated a new language at this point
<ith the support of a good part of the media, artists and progressive intellectuals, the%
started to name the law4 -Egalitarian Marriage !aw/ #his proved to be a smart strateg%
that increased the positive impact of the issue in the societ% #herefore, the pressure on
the senators was even bigger
In this scenario, the general legislation commission chaired b% 5enator !iliana
&egre de Alonso 6@ederal Peronist9
18
and one of the most prominent opponents to the
marriage draft law decided upon the Aouse of 2epresentatives report of the majorit% In
the commission, that report did not reach the enough votes and it became the report of
the minorit% In addition, the commission signed a 5enate report of the majorit%
proposing a civil union law #his draft did not include the right of adoption and
prohibited assisted fertilization techniEues
In all fairness, 5enator &egre de Alonso, as President of the commission, did a
good job 5he not onl% called on the main figures in this topic in the 'it% of "uenos
18
A dissident Peronist bloc, that bro=e with the Peronist Part%
0C
Aires, but also went with other members of the 5enate to several provinces and opened
the debate to the different voices4 experts, academics, social =e% pla%ers, and activists
#he floor session was set for Jul% (*, 0;(; A few da%s before that date, the
archbishop of "uenos Aires sent a public letter in which he considered among other
statements that the same$sex marriage law was a -pretension to destro% God>s plan/
#he night before the 5enate>s session there was a huge demonstration called b% the
'atholic and 3vangelic churches in favor of heterosexual marriage
#hat 5enate deliberation was opened b% 5enator &egre de Alonso 5he showed a
ten minute video that briefed one hundred hours of debate organized in nine provinces
#he session lasted more than thirteen hours #he debate was closed and onl% a few
political figures were able to be on the floor as an audience #he media and other guests
were in a special room #he debate was passionate, but polite !i=ewise, there were
several moments of strong tension #he uncertaint% of the outcomes was present until
the end It was thought that 5enator JosQ Pampuro, the provisional president of the
5enate, was going to brea= the deadloc= #he difference of the voting in favor of the law
was a surprise @inall%, on Jul% (?, 0;(;, the 5enate passed the law with 1; votes in
favor, 0H against and three abstentions
Argentina is the first countr% in !atin America that has passed a marriage law for
ever%one #he new law modified several articles of the 'ivil 'ode, replacing the words
-husband/ and -wife/ with -contracting parties/ $a neutral word$ recognizing the same
rights to same$sex marriages
#here have been several criticisms of the law, including those from people in
favor of same$sex marriage It would have been a great moment to pass a law that
contemplates all the aspects of this legal advancement and also modified also old
existent concepts in the civil marriage Moreover, the words mother, grandmother, and
0H
grandmother have been totall% erased from the law #here were some interesting
contributions from well$=nown scholars but none of them were ta=en into account #he
fact is that from the !G"# activist point of view and the perspective of the proponents
of the law, the% just wanted to assure passing the new law #he% believed that adding
changes or improvements to the draft would have ris=ed its approval #he priorit% was
to seize the opportunit%
#he process started with the use of courts in order to -push/ the 'ongress>
political agenda #hen lobb%ing both at the Aouse of 2epresentatives, which passed the
project, and later at the 5enate that enacted the law within two monthsOwhich is an
achievement in terms of speed @inall%, President 'ristina @ernandez de Pirchner
promulgated the law six da%s after the approval of the law $Jul% 0(, 0;(;$, also in a
record time, the President signed the law in an insightful ceremon% Activists of the
!G"# communit%, human rights groups, artists, the author of the project, political
figures that support the project, among others attended the ceremon% President
@ernandez de Pirchner said4 -I am proud to sa% that toda%, we are a societ% more eEual
than last wee=/
#he social mobilization $support structure$ the% have built along with alliances
with the I&ADI, has provided their legal mobilization with all t%pes of resources and
support 6law%ers, access to the media and mone%9 not onl% in the 'apital 'it% but also
in the interior of the countr% <ith all these resources the !G"# @ederation became a
-haves,/ in Marc Galanter>s terms #o have a presence across the countr% has been
extremel% important, ta=ing into account that the Marriage !aw is a national law and
needed the votes of the representatives of the majorit% of the provinces to be passed
After that great accomplishment, the activists were extremel% happ%, but the%
have not been resting #he% followed up on the enforcement of the law, understanding
08
that that tas= is important A long list of new same$sex marriages started to ta=e place on
Jul% 1;, 0;(; #he first couple got married that da% at H4*? am in 5antiago del 3stero
!ater, Alejendro :anelli and 3rnesto !arresse who presented the second amparo three
%ears earlier celebrated their marriage in the 'it% of "uenos Aires, after 1* %ears of
living together Fn Jul% 1(, MartKn Peretti 5cioli and Fscar 3duardo Marvich, who had
brought the third amparo, also got married in 5anta @e Fn the same date, two 'hileans
celebrated their marriage in Mendoza where the% have been living for (* %ears #he%
have been together as a couple for 00 %ears #wo women married in 2io Gallegos, 5anta
'ruz, among a significant number of other partners Almost six months after the law
was passed, about one thousand couples had been got married across the countr% #he
majorit% of the marriages $around 1?; couples$ had been celebrated in the Province of
"uenos Aires, then 11; couples at the 'it% of "uenos Aires Moreover, there had been
8; marriage celebrations at the Province of 5anta @e Aowever, it is important to
mention that according to !G"#>s trac=s marriages have been celebrated in all the
provinces, cities and towns of Argentina #his fact shows that the Egalitarian Marriage
is an issue that involves not onl% people who live in urban areas All of this happened in
a remar=able environment of respect from all the Argentine societ% #his would have
been unthin=able onl% a few %ears ago
Activists =now that this is onl% the beginning and the% do not rest #he% have
mentioned that it is essential to have a solution for the !G"#>s sons and daughters born
before the enactment of !aw 0C,C(8, in order to be entitled with the same rights
regarding to the recognition of their parents and + or mothers as their personal and
famil% identit% #he activists also have been loo= at closel% to the regulation of the law
in order to assure the fulfillment of the &ational 'onstitution that guarantees to
foreigners the same citizens> civil rights @or the activists, this issue is extremel%
0)
relevant for the same$sex couples which are not entitled with the marriage right at their
countries of origin In the same wa%, the organizations have been pushing the passing of
the law on Gender Identit% and Aealth In fact, part of the goal has been accomplished
Fn &ovember 1;, 0;((, the Aouse of 2epresentatives passed the law proposal
presented b% the @ederation and some legislators about Gender Identit% It was bac=ed
b% (CH legislators while (H voted against and another H lawma=ers abstained, and now
goes for treatment in the 5enate during 0;(0 period #he new legislation gives priorit%
to Tinternal and individual experience of gender as each person feels,T which ma% or
ma% not correspond with the sex assigned at birth
7. (inal Thought) about L#!T Mobilization
"% observing the experience of the !G"# social mobilization in Argentina,
which included lobb%ing, demonstrations, and particularl% the legal cases brought to the
courts, several factors compelled them to focus their strateg% on the use of courts #he
legal changes were not at the core of the !G"# mobilization 5ome small legal changes
were occasionall% accomplished in conjunction with other stronger organizations doing
some lobb%ing #he% offered some free legal advice for particular cases, but not
strategicall% #he onl% successful strategic case was the reEuest for the official
authorization of the legal entit% status for the Argentine Aomosexual 'ommunit%
6'AA9 I sa% -successful/ strategic case because the court decision ma% not have
produced the result that was sought, and thus did not create a favorable precedent, but it
did place the issue on the public agenda #his was a single isolated case because of the
lac= of two important factors #he% did not have the powerful legal tools and arguments
given to the movement b% the ())* constitutional reform 5econd, there was not a
strong social mobilization $support structure$ behind those actions Indeed, at that time
1;
the 'AA was reconsidering its role due to a low level of participation As we saw later
and with better results, the Association of 5truggle for the !iberation of #ravest%
Identit% 6A!I##9 had a different experience in achieving its legal authorization at the
5upreme 'ourt Aowever, it was also a one$time isolated case disconnected from a
broader strateg%
Man% factors compelled the !G"# movement to turn to courts as part of its
strategic efforts to achieve their polic% objectives #he% realized the cultural, social, and
political changes that a series of legal reforms could bring #he conseEuences of passing
the 'ivil 7nion !aw expanded to new aspects that were not initiall% foreseen, exceeded
the benefits expected, and went be%ond the borders of the 'it% of "uenos Aires #hose
circumstances revolutionized the approach of how some organizations had been
wor=ing, changing their emphasis towards litigation strategies to achieve social,
political, and legal reforms In this fashion, the% have also ac=nowledged that their legal
mobilization could count upon strong legal arguments and tools established in the set of
constitutional reforms consecrated in ())*
After the experience at the level of the 'it% of "uenos Aires, the% realized how
difficult it would be to achieve more advancement if mobilization was not well
organized At the 'it% level it was easier than on a &ational scale #he !egislature of the
'it% of "uenos Aires presented some features that did not exist at the &ational
'ongress #here were fewer legislators and the collective bod% was a political mosaic
that was not ver% well organized and lac=ing disciplined voting blocs Additionall%, the
'AA>s frustrating experience with its national civil union project and other unsuccessful
attempts from some legislators were lessons well learned #herefore, while lobb%ing for
legal changes proved to be effective at a local level, the conditions were more
challenging if the !G"# mobilization wanted to nationalize its struggle
1(
At that time, the conditions to start well$planned litigation strateg% were there,
and the social and political climate was more encouraging #he !G"# communit% did
have more legal tools on which to rel% based on the reformed 'onstitution of ())* and
some new 5upreme 'ourt rulings Also, the !G"# movement managed to develop a
strong support structure for social mobilization along the lines of what 3pp had shown
was.
1)
@or 3pp, the reEuired sources of support consist of rights advocac% law%ers,
rights advocac% organizations, sources of financing of various t%pes and governmental
rights$enforcement agencies #his support structure permits a widespread, sustained,
and successful rights$litigation
"efore the !G"# @ederation prepared the ground, various organizations existed
but the% clearl% were not as successful #he support structure for legal mobilization that
the !G#" @ederation carefull% developed is the determinative factor explaining this
major achievement of passing the Egalitarian Marriage !aw 5ome features of the
social mobilization confirm this conclusion @irst, it is an organization that has
encouraged the agreement and the union of forces of all the !G"# groups throughout
the countr% 5econd, this is an organization formed b% smaller groups, which has
contained them and given them a direction, and a sense of purpose #herefore, it is an
organization that trul% represents the claims of the !G"# communit%, and has included
people actuall% affected #hird, most @ederation members have an activist bac=ground
and are well trained for activist initiatives Indeed, the organization did not need to hire
legal advice because the law%ers who too= the cases are active members of the group
@ourth, the @ederation>s developed an experience and expertise in litigation needed for
later success improving their amparos among other tactics and learned from its own
1)
3pp, "he Rights Revolution: La.yers% ctivists% and Supreme Courts in Comparative
#erspective
10
practices @ifth, although the @ederation did not have a substantial budget, the% wisel%
too= advantage of the I&ADI and its resources as a springboard to reach its objectives
#hus, one of the principal findings is that the !G"# movement developed a
well$established structure with all t%pes of resources and a particular expertise in
litigation #hen, it is an organization that should be considered -repeat pla%ers/ and a
-haves/ in the terms suggested b% Galanter in his famous stud% In the same wa%, a new
reading of Galanter> anal%sis that states that the -haves/ change its composition and
have a new agenda based on social justice and Eualit% of life $ issues enjo% the
s%mpath% of educated and professional people$, this organization should be understood
also as a -haves/
*;
#he agreement on the strateg% between the two most important groups of the
!G"# movement came out once the @ederation>s strateg% started to show some chances
of success In the same wa%, the 'AA did not agree with the close relationship with the
I&ADI In the end, the organizations stuc= together and it wor=ed #he superior and
common objective prevailed #his movement clearl% showed a capabilit% to organize
themselves, even under challenging circumstances #hrough a wise use of its own
resources and a well$planned strateg%, the !G"# movement gained access to the
judicial s%stem #he strateg% of the legal cases wor=ed ver% well at comparativel% low
costs #he arguments introduced in court, even those in cases that turned out to be
unsuccessful, helped to place the organization>s issues on the public agenda,
highlighting the specific rights at the core of the struggle Aowever, some conservative
legal voices Euestioned some aspects of the legal process4 the forum shopping and the
validit% of the court decisions #he !G"# law%ers strategicall% selected the jurisdiction
#his practice is labeled in the legal literature as forum shopping
*(
5ome scholars
*;
Ian "rodie et al, -Do the -Aaves/ 5till 'ome out Ahead in 'anadaB/
*(
Mar% Garve% Algero, -In defense of @orum 5hopping4 A 2ealistic :iew at 5electing
:enue,/ -e+ras/a La. Revie. H8, 6()))94 H) @or Garve% Algero, forum shopping
11
criticize this practice and others support it In this particular case, those who criticize the
selection of the jurisdiction understand that those judges were not competent to decide
about marriage rights #he observation about the validit% of the judges> rulings is
directl% related to the consideration of the forum shopping as pejorative and unethical
practice as well as the misunderstood flexibilit% of the jurisdiction rules
It is important to emphasize that the =e% pla%ers of the @ederation were
dedicated to preparing the cases full time, training the parties, and loo=ing for the most
opportune moment and the -right/ judges to present the cases &ot onl% that, the%
followed up on court decisions and =new the importance of the media in each of those
actions
In addition, the wor= of political leaders was coordinated with the forces and
strategies of the social movement #he legislators =new how to manage the agenda and
cooperate with them despite their different political bac=grounds #he% agreed that there
was a common goal to achieve and left out political differences 2epresentative :ilma
Ibarra too= advantage of being the president of the General !egislation 'ommission to
set the issue on the agenda, joining forces with the representatives that had presented
initiatives to modif% the marriage law before 6Di Polina, 5burguer9 In general, during
the whole process, the politicians and the !G"# social mobilization wor=ed as a
cohesive bloc
#he efforts of the !G"# mobilization had an important impact on the media
#here has been widespread media coverage of this issue, usuall% appearing on the front
pages and in primetime news shows In the last %ears, the main #: channels
*0
broadcast
refers to the act of see=ing the most advantageous venue in which to tr% a case @orum
shopping can ta=e place -horizontall%/ when a part% is shopping for the best venue from
among the courts within the same court s%stem @orum shopping can also ta=e place
-verticall%/ when a part% is tr%ing to move from state court to federal court or vice
versa
*0
'anal (1 and #elefe
1*
at prime time their most popular program, which involved a ga% couple in the stor%
*1
In
general, media coverage was positive and supportive of the initiative of the !G"#
movement
Fn the other hand, opponents contributed to the success of the !G"#
mobilization in several wa%s @irst, the lawsuits brought b% them were generall% poorl%
reasoned and without legal grounds from a substantive law perspective and from a
procedural standpoint since third part% people who were not part of the cases presented
them 5econd, opponents dela%ed their activism against the same$sex marriage proposal
#he% underestimated both the power of the !G"# social mobilization and the intensit%
of public opinion In this wa%, Argentine societ% showed its high level of secularism
#hird, the aggressive discourse of the extreme right wing turned awa% the -undecided/
#here were man% people who had initial reservations to same$sex marriage, but the% did
not agree with the violence of some opponent>s statements #his made them more
s%mpathetic to the !G"# cause In the process, conservative groups became more
s=illed at communicating their ideas in more positive and less hostile wa%s
<ith regard to public discourse and public relations, both sides learned from
their experiences In the case of the !G"# mobilization, the% used the slogan -the same
name, the same rights/ &evertheless, when the media communicated on the !G"#
struggle the% often called it -ga% marriage/ After the Aouse of 2epresentatives passed
the law, the @ederation insisted upon a new label4 -Egalitarian Marriage/ #his was a
different message and it produced successful results
#he issue involving the adoption of children proved to be just as controversial
Instead of avoiding the debate, the !G"# organization addressed it sEuarel% #he%
explained that the actual law allows single !G"# persons to adopt children #hus, the
*1
"otineras 6#elefe9, 3l elegido 6#elefe9, Para vestir santos 6'anal (19, Aerederos de
una pasion 6'anal (19, among others
1?
Egalitarian Marriage law would improve and eEualize the situation between adoptions
b% heterosexual couples and !G"# partners giving to those children the same rights of
the others
**
#he% focused the debate on expanding children>s rights, not discriminating
against them
#he strateg% of the use of courts b% the !G"# movement undoubtedl% had an
impact on the other branches of government 'ongress certainl% felt the pressure of the
social mobilization and the legal arguments of the court decisions addressing the
fundamental law4 the 'onstitution Moreover, the social mobilization joined forces with
the progressive political parties 65ocialist and other minor parties9, and found the
bac=ing of the ruling part% and the 3xecutive #he 3xecutive showed its support
through the I&ADI, then b% the chief of staff, later through Ministers, and eventuall%
the President herself expressed her commitment with this struggle
It is worth highlighting the fact that all the parties gave their legislators freedom
to vote their consciences on this issue, liberating them from part% discipline #his issue
proved to be important for Argentine democrac% #he Egalitarian Marriage issue was
be%ond the normal political -Euarrels/ and resulted in an informed discussion of
substantial content throughout the political debate 'itizens, journalists, politicians,
academics, and artists expressed their opinions in favor or against, but the whole societ%
was discussing this important issue It was a topic that transcended political parties
5ome rights are universal and touch all of us, and the outcome of the political debate in
Argentina was a true celebration of democrac%
#his chapter shows that social mobilization $support structure$ contributed to
those outcomes, and courts pla%ed an important role #he Argentine private law 6'ivil
**
3xample with the egalitarian marriage law4 if one member of the couple dies, then the
other can continue rearing the child while at the same time maintaining rights of
inheritance from the deceased 7nder the 'ivil 'ode Marriage !aw that was not
possible
1C
!aw9 has been constitutionalized, and the amparo $ summar% legal instrument $ to
access the courts has become more ordinar% #his helps to facilitate access to justice and
the eEual recognition of rights to all citizens, especiall% the disadvantaged ones
In sum, in this wor= I argue that when causes are being advanced in court b%
groups that enjo% considerable social mobilization $support structures for legal
mobilization,$ the% are li=el% to achieve the objectives that are sought
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#ate, &eal and #orbjorn :allinder #he Global 3xpansion of Judicial Power4 the
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#a%lor, Matthew Mac!eod Activating judges4 'ourts, institutional structure, and the
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#rube=, David and Marc Galanter -5cholars in 5elf$3strangement4 5ome 2eflections
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#ushnet, Mar= <ea= 'ourts, 5trong 2ights4 Judicial 2eview and 5ocial <elfare 2ights
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<al=er, Anders 5hotguns, <eddings, and !unch 'ounters4 <h% cultural @rames Matter
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Ioung, Iris Justice and the Politics of Difference Princeton, &J4 Princeton 7niversit%
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