During meeting made in January 2022
The Cuban president insisted that same-sex marriage is one of the most debated aspects of the Family Code to be put to a referendum on September 25, 2022is not the only issue that will apply the new regulations.
Díaz-Canel hinted that those who consider the Family Code to be about same-sex marriage have forgotten that it “is recognized in a constitutional article.”
The last expression of the Cuban president is false. There is no article in the 2019 Constitution that expressly recognizes same-sex marriage, understood as the legalization of a love union between two people, regardless of gender.
On the contrary, the current constitutional arrangement of marriage protects equal marriage to a much lesser extent than the original draft presented for public consultation, which contained – at the time – the much-discussed Article 68.
LOSS OF THE BAN VS. CONSTITUTIONALIZATION
The 2019 constitution removed the tacit ban contained in its 1976 predecessor, which legally prevented the recognition of same-sex marriages through subordinate clauses. In the previous Magna Carta, marriage was established as the arranged union between a “man” and a “woman”. However, the removal of this tacit prohibition does not mean recognition or constitutional protection of same-sex marriage.
The initial draft of the Constitution, published in 2018, removed the restriction and introduced a non-appealable general formula for public consultation. In its article 68, it established that marriage is a union between “two persons” and that a later norm would regulate the forms by which it could be instituted and dissolved. “Given the results of the consultation”, the commission for drafting the constitutional text changed Article 68 and turned it into 82 of the current text, which recognizes that marriage is a legal-social institution based on “free consent and equality of rights, obligations and legal capacity of husbands».
By removing the term “persons” to designate who could be contracting parties and replacing it with “spouses,” the framers of the constitution abrogated a key constitutional protection for those who supported recognition of equal marriage. The term human is not subject to further interpretation because it is applicable to all members of the human species. Therefore, gender would not be a limiting factor for the state to agree to recognize homosexual unions as marriage.
However, after the public consultation, the drafters of the constitution decided to abandon proposing a new concept of marriage from the constitutional text and removed the reference “union between two people” to return to the traditional term “spouses”. The current wording of Article 82 of Magna Carta, although not as restrictive as that used in its 1976 predecessor, does not expressly recognize – as Article 68 of the original draft – same-sex marriage. The term “spouses”, although generic, is closely related to the traditional conception of marriage as an exclusive union between a man and a woman, and requires, in order to offer a clear defense of same-sex marriage, a subsequent reinterpretation that is not essential in the case of the term “face”.
In turn, the authors of the constitutional text unequivocally defined who should interpret the term “spouses” and determine whether or not equal marriage would be recognized in Cuba. This task, in accordance with the eleventh transitional provision of the Constitution, rested with the Communist Party-controlled National Assembly and the people who ultimately decided that this political force would draft the new Family Code.
The provision turned constitutional article 82 into an article without content and dependent on future provisions of the Family Code. An article that hardly anyone could refer to independently and exclusively to request, for example, the recognition of equal marriage before the court.
The most dubious thing about the act of political engineering carried out after the referendum on the constitutional text is that, in addition to depriving the constitutional provision of marriage of its content, the commission for drafting the text conditioned its legal definition on the decision of the majority of the electorate to express in a referendum for adoption of the future Family Code. An unprecedented referendum in the history of the latest Cuban institutionality, which has never before seen the celebration of an act of this type to approve a law. A referendum that is essentially a plebiscite for the rights of the LGBTIQ community.
After the referendum, those who drafted the 2019 Constitution — which theoretically included Díaz-Canel — decided to omit from the text the definition of who could be considered spouses in the eyes of the Cuban state. In doing so, they prevented Magna Carta from laying the groundwork to prevent future norms inferior to the Constitution from upholding traditional conceptions of spouses and marriage at the risk of being declared unconstitutional. But above all, they transferred to the electorate the exclusive responsibility of the state to recognize and guarantee the human rights of all people.
A POSSIBLE WAY FORWARD
Despite the technical-legal falsity of Diaz-Canel’s approach, his statement may offer a way for the LGBTIQ community to continue its advocacy—beyond waiting for the referendum results or opposing the conservative agenda—for the state to recognize same-sex marriage.
In some countries in the region, same-sex marriage is not enforced through legislation, but rather through the courts. It is the courts that have recognized the right of every person – regardless of their gender – to marry.
Mexico is the most representative example of the region. From the verdict in the review of the amparo process (704/2014), the Supreme Court of the Nation consolidated a process that happened at the state level. A process whereby local courts forced registrars, at the request of prospective spouses, to register and recognize certain same-sex unions as marriages.
However, it was only with the above-mentioned decision that the Court established the jurisprudence regarding the concept of marriage and declared unconstitutional any law that reproduces the traditional vision that considers it as an exclusive union between a man and a woman and whose main purpose is the creation of offspring. Thus, as has happened in the United States, constitutional justice, not the legislature—much less constrained by a plebiscite bill of rights—is the institutional actor that materializes equal marriage.
Mexican constitutional justice has been able to ensure that in the case of same-sex marriage the principle of counter-majority, which informs modern human rights theory and which is unknown in Cuba, is respected. Human rights cannot be limited or violated by political majorities, however broad they may be.
THE DIFFICULTIES OF THE MEXICAN DECISION IN THE CUBAN CASE
Attempting to use the Mexican formula as an advocacy mechanism in Cuba is not without difficulties. However, this could be yet another way of demanding that the state fulfill the commitment it falsely, according to Díaz-Canel, claimed to have made during the promulgation of the 2019 Constitution.
The main stumbling block is overcoming constitutional design, which, as explained, emptied the content of the constitutional article governing marriage and made it subject to future regulations. The other, and no less important, is related to the lack of independence and functionality of the Cuban judicial system: especially in constitutional matters. Cuban courts can only hear constitutional conflicts from July 15, 2022, when Procedural law for the protection of constitutional rights.
The courts of the archipelago proved to be a tool to legitimize the repressive decisions of the Communist Party, rather than bodies through which a claim for rights – which were denied by the authorities or conditioned by theoretically democratic exercises – could be achieved.
However, the courts are the only agencies that have relatively public and effective procedures that require them to respond in writing to citizens’ requests. The answers are ultimately the state’s recognition of discrimination and lack of commitment to human rights, as well as a weapon to promote and enable the agenda of a community that must muster all possible support if its main hope is in the results of a referendum .
The process of constitutional protection is expeditious and, if promoted soon, could also serve to activate support for a referendum which, “if the official results of the referendum concluded in May 2022 are to be judged”, will have one abstention and refusal of not a small part of the electorate.
Given this scenario, the defense process could be used to promote the commitment (or lack thereof) of the Cuban authorities to same-sex marriage. The answers received from the courts can be used as a political weapon for a direct and legal demand – without losing itself in opposition to the conservative agenda, which also has the right to coexist – to which there is a real obligation to guarantee the rights of the LGBTIQ community: the state.
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