Same-sex marriage has become one of the LGBT movement’s main demands in Latin America in the past decade. Argentina was the first Latin American country to recognize same-sex marriage in 2010, and it has been replicated in other countries such as Brazil, Uruguay, Colombia, Ecuador, Costa Rica, and Mexico. In all these cases, the courts have been an important ally of the LGBT movement, generating the constitutional grounds and decisions for the recognition and expansion of the rights of same-sex couples. In this sense, litigation has proved to be a powerful strategy for LGBT groups for their demands of recognition, and in the analyzed cases, the judiciary has been receptive to these petitions and claims assuming different roles. The litigation experience in Latin America has been shaped by the U.S. litigation model for the advancements of civil rights, a model that has had an impact in the LGBT campaigns for same-sex marriage, and as a result it is possible to identify different roles that the Latin-American courts have played in protecting same-sex couples and legally recognizing their partnerships in the region.
Thus the historical developments of the strategic litigation have been crucial for the recognition and advancement of rights, generating a type of litigation that was originated in the United States and later replicated in Latin America, thanks to institutional changes and successful experiences of same-sex marriage litigation. However, the courts have assumed different roles when recognizing the right to marriage between same-sex couples in the region, according to the legal, social, political, and international context where they are inserted, showing that the “politization of the justice” and the “judicialization of politics” are two interconnected procceses that combine in different and complex manners when debating sexuality in the region.
Liberty, Equality and the Right to Marry under the Fourteenth Amendment