By Anna Joseph*
As government and FARC officials seek ways to salvage the peace accordsafter a “no” vote in the plebiscite, Congress debates whether to hold another popular vote: a referendum aimed at overturning last year’s Constitutional Court decision legalizing same-sex adoption. Putting aside whether a result against same-sex adoption would stand considering the national, regional, andinternational protections for LGBTQ equality, the current binary in Colombia presents an opportunity to ask when populations should vote on specific policies.
This comes at a time when other countries are putting LGBTQ rights on the ballot, a tactic favored both by liberal politicians seeking to distance themselves from decisions and by conservative politicians hoping to foil governmental bodies. Thus far, marriage equality (the most visible of the LGBTQ rights battles) has most commonly been advanced through legislation, including in Argentina (2010) and Uruguay (2013). The judicial branch constitutes the second most popular route worldwide and the most popular in Latin America, utilized by Brazil (2013), Mexico (2015), and Colombia (2016). Only one country has controversially achieved marriage equality through the ballot (Ireland, 2015). But whichever side proposes a vote on LGBTQ rights, either to add rights or remove them, the central point remains: minority rights should not be subject to the will of the majority.
Rights form part of the legal structures aimed at curbing the operation of power, or at least place concrete limits on it. In 2010, the Constitutional Chamber of the Supreme Court of Costa Rica voiced that crucial point in a decision blocking a referendum on same-sex civil unions. While Costa Rica’s general tendencies do not exemplify LGBTQ inclusion, in the particular case of blocking direct participation that Court made valuable insights: laws protect disadvantaged minorities against the majority, which has an inclination to perpetuate the unequal treatment from which it benefits. On the other hand, the Court continued, public authorities are required by national constitutions and the instruments of International Human Rights Law to promote equality. Representative democracy and constitutional courts thus exist to place law between oppressed populations and those who would further oppress them.
The Costa Rican Court went on to discuss that popular mechanisms like plebiscites and referendums, even when entirely consistent with the legal system based on a literal interpretation, constitute a fraud against the Constitution and the law when utilized to take rights from a marginalized group like people who are LGBTQ. The purpose of a referendum is to achieve democratic participation; it is meant to further inclusiveness. The fraud of using it instead to exclude, the Costa Rican Court continued, becomes more obvious when groups in the majority that are openly adverse to the impacted minority promote the initiative. Thus, based on the motivations of those promoting that referendum and its potential to reinforce existing inequalities, the Court held that a vote regarding LGBTQ rights was contrary to constitutional ideals.
In the case of the peace accords, encouraging citizenship participation in the context of low political trust and restorative justice seemed like a relatively positive use of a popular mechanism (and the Colombian Constitutional Courtdifferentiated between voting on a particular peace agreement and voting on peace in general, a constitutional right in Colombia). Yet while the plebiscite would have passed the motivations part of the Costa Rican Court’s test, the plebiscite’s results demonstrate the danger of putting even seemingly “neutral” policies to vote. The accords contain sections explicitly describing minority rights that should certainly not be subject to–or dependent on–a plebiscite’s outcome, and on the whole they disproportionately impactwomen, afro-colombians, indigenous communities, LGBTs, and people living in rural poverty. The regional breakdown of the results reflect those splits: generally, those most harmed by the conflict voted for the accords, and, generally, those in relative safety voted against them. This outcome provides an additional cautionary tale against popular mechanisms, in favor of instead elevating the voices of the most vulnerable when considering any policy.
Those supportive of both democratic participation and minority rights will be faced with this question of how to distinguish appropriate popular mechanism use. Following the reasoning of the anti-subordinationist Costa Rican Court, one should examine the proposed vote’s purpose and impact in light of existing power structures: whether the popular mechanism is being wielded to seek democratic legitimization of policies or to consolidate the majority’s dominance, and whether or not the result would in fact undermine marginalized populations’ inclusion. In the case of the Colombian same-sex adoption referendum, the answer becomes crystal clear.
*Anna Joseph is a fellow at the Center for the Study of Law, Justice and Society (Dejusticia).
Photo credit: Photo by: Cablenoticias