A Fight for Accidental Law: The Case of Costa Rica

In July this year the Costa Rican parliament passed an enabling legislation, which could potentially open the gates to same sex marriages in Costa Rica. The tragedy:  it was only after the passing of the Bill that the opposing Conservative Party found out that such an interpretation could be made. In what is called its ‘Law of Young People’ which the Parliament passed, it recognizes: “The right to recognition without discrimination contrary to human dignity, social and economic effects of domestic partnerships that constitute publicly, notoriously unique and stable, with legal capacity for marriage for more than three years.” It was alleged that in the debates, the lawmakers from the Broad Front Party specifically discussed that the Bill could alleviate the problems of homosexuals. The Broad Front also alleged that the Conservatives had not read through the entire Bill before voting on it.

The Costa Rican background to  homosexuality stands that the Supreme Court of Costa Rica in 2006 refused to include same-sex marriages within the definition of “marriage”. However, consensual sex between homosexuals has been legal. Status quo has been maintained since 2006 uptill now when the leftist legislators ‘got the legislation’ passed. After the incident, the Conservative party pleaded the president to veto the legislation, which the president refused. The spokesperson for the party said that they felt “deceived”. In contrast, the leftist party stated that the Conservatives had failed to read the whole Bill. The Costa Rican Constitution does not expressly restrict or permit same sex marriages. Article 52 states that marriage is the basis of the family and is based on the concept of equal rights of spouses. It does not refer to a gender specific classification e.g. husband and wife but rather uses the gender neutral term “spouses”.

The incident raises a fundamental question, what is the justification of such a law? Can a law  which does not truly represent the will of the legislature,  be called a law in the first place?  Voting in an assembly clearly assumes a deliberative exercise by the members of the legislature. If a section of the Parliament is unaware of the repercussions of the law it has passed, it cannot be deemed to have effected the will of the legislature. Failing which the substantive process of law-making remains incomplete as all the factions of the society, which were supposed to have been represented by the legislature are not included in the creation of the law. For the positivists, however, the law is created, as all the institutional procedures required for a valid law have been satisfied. Article 9 of the Constitution however requires that the organs of the State perform their  functions without delegation and that the Government of Costa Rica will act responsibly, and will ensure participation of all people. In the present case, it is clear that Article 9 has not been duly followed.

The next question which then follows for the conservatives would be whether such a law which potentially conflicts with most other laws of the country be struck down? The law has to now face practical challenges, as a same sex couple has filed for such recognition granted by the amendment, before the Supreme Court of Costa Rica. Article 10(1) of the Constitution of the Republic of Costa Rica provides for a special Chamber of the Supreme Court which may determine the vires of a particular legislation. The problem arises with the interpretation of the clause ‘legal capacity of marriage’.  The capacity is to be interpreted as subject to Paragraph 6 of Article 14 of the Family Code, which by law prohibits the marriage between people of the same sex. The issue is that amendments to the Law of Young People do not change Article 242 of the Constitution of the Republic of Costa Rica which prescribes marriage as that between a male and a female. These two restrictions now create a gap in the law as the amendment provides for recognition of domestic partnerships with recognition of legal capacity. This was the intention of the framers of the Bill and the Court will have to strive to find a middle ground.

The Constitution of Costa Rica clearly creates a hierarchy that the laws would be subject to the provisions of the constitution but does not restrict the judiciary or the constitutional chambers from adopting a particular mechanism in terms of two conflicting laws. The Constitutional chamber now possesses an unusual discretion, of adopting one interpretation over the other. It also possesses the chance to legalize same sex marriages by upholding the more recent law. But given the manner in which the law was passed, the chances of the chamber formally legalizing same sex marriages still remain bleak.

This post has been authored by Arthad Kurlekar and Upasana Chauhan, students at the West Bengal National University Juridical Sciences and members of the NUJS Constitutional Law Society.


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