SAME-SEX MARRIAGE: CONSTITUTIONAL FRAUD (DISSENTING OPINION)

1. BACKGROUND

Judge Hernán Salgado, together with three other judges, did not vote with the five-judge majority and issued a dissenting opinion in which he strongly criticized the reasoning of the reporting judge in Judgment No. 11-18-CN/19, adopted on June 12, 2019, in Case No. 11-18-CN, regarding same-sex marriage.

He stated that the majority’s interpretation of Article 67 of the Constitution of the Republic of Ecuador, which clearly provides that marriage is the union between a man and a woman, is “a new form of constitutional illusionism” and “a process of arbitrary mutation that destroys the supremacy of the Fundamental Law” (paragraph 2), which “could lead to a fraud against the Constitution” (paragraph 58).

He reminded the majority judges that “a constitutional judge is not a legislator, much less a constituent legislator” (paragraph 4).

2. FALSE PREMISES OF THE MAJORITY

The following false premises are identified in the reasoning of the majority judges:

A) Article 67 of the Constitution is doubtful, as it is not clear or precise, and admits several readings.

B) The Advisory Opinion of the Inter-American Court of Human Rights, OC-24/17, is a binding norm of constitutional rank because it is an international instrument.

C) Article 67 of the Constitution may be subject to consultation because it is a legal norm under Article 428 of the Constitution, and the Constitutional Court has jurisdiction to address the consultation submitted by the lower court judges.

D) Constitutional review of a constitutional norm is admissible, outside the formal and abstract review of amendments or reforms provided for in Article 106 of the Organic Law on Jurisdictional Guarantees and Constitutional Control.

E) The consultation concerns Article 67 of the Constitution and not exclusively the legal provisions contained in Article 81 of the Civil Code and Article 52 of the Identity Management Law.

3. LITERAL AND SYSTEMATIC METHOD VERSUS EVOLUTIVE METHOD

Article 67 admits no interpretation other than the one established in its text. The literal method provided for in Article 427 of the Constitution is applicable (paragraph 39).

It is not a constitutional principle with a high degree of indeterminacy, ambiguity, and vagueness, but rather a legal norm with a high degree of concreteness and specificity, leaving no doubt. Therefore, its “grammatical and systematic meaning” must be followed, adjusting its meaning and scope to the integrity of the Constitution, pursuant to Article 3, numeral 5, of the Organic Law on Jurisdictional Guarantees and Constitutional Control (paragraphs 40, 44, 46, and 48).

The Constitution is a “normative body containing a systematic order of provisions that must be read comprehensively,” making “any constitutional interpretation that annuls certain constitutional norms inadmissible” (paragraph 52).

Modifying Article 67 of the Constitution “under the pretext of the evolutive method, without any justification, could lead to a fraud against the Constitution, since it would imply reforming its text through an interpretative mechanism not provided for that purpose” (paragraph 58).

“The forced interpretation promoted by the text of the reporting judge does not conform to Article 427 of the Constitution. It disregards the literal wording of Article 67 of the Fundamental Law by giving it a meaning it does not have, completely modifying it. It does not safeguard the integrity of the constitutional text because it carries out an interpretation that disregards and annuls other constitutional provisions, such as Article 68 on adoption and Article 69 referring to fathers and mothers, paternity and maternity. It even annuls the mechanisms for constitutional reform” (paragraph 9).

4. GUIDING NATURE OF THE ADVISORY OPINION OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

The Inter-American Court of Human Rights does not consider its advisory opinions to be international instruments, but rather “a form of case law.”

Their purpose “is not to order States to adopt concrete measures.” They serve to “assist States” in fulfilling their obligations. Therefore, “the States themselves are responsible for determining the manner in which they will comply with their human rights obligations” (paragraphs 75, 77, and 84).

Advisory opinions, such as OC-24/17, “as they are not international instruments, do not constitute a parameter of constitutionality” (paragraph 93).

The Inter-American Court attributes to them “undeniable legal effects.” “In view of the absence of explanations regarding the meaning of the expression ‘undeniable legal effects,’ legal doctrine has held that their force is supported by the scientific and moral authority of the Court” (paragraphs 85 and 89).

They lack the binding effect of judgments. OC-24/17 “urges” States to make the corresponding internal modifications, which confirms that it does not have direct and immediate effect (paragraph 92).

5. REVIEW OF A CONSTITUTIONAL NORM AND LACK OF JURISDICTION OF THE CONSTITUTIONAL COURT

The consultation of a norm is a mechanism of constitutional review intended to guarantee constitutional supremacy. However, “the provisions of the Constitution are not subject to review,” except in the case of the review provided for in Article 106 of the Organic Law on Jurisdictional Guarantees and Constitutional Control, regarding amendments or reforms, and only on formal and abstract grounds, never on substantive and concrete grounds.

Such provisions constitute “their own canon or parameter of constitutionality,” and “within constitutional review, the object of analysis cannot be a provision contained in the Fundamental Norm itself” (paragraphs 19, 20, and 22).

The dissenting opinion dismantles the premise of the majority’s reporting judge that “neither the Constitution nor the law excludes the possibility that this legal norm, the one subject to consultation, may be a norm of the Constitution itself” (paragraph 24).

“The pedagogical function of the Constitutional Court” cannot serve as a pretext to “act in a consultation of a norm by addressing aspects unrelated to the legal nature of this tool” (paragraph 31).

The Constitutional Court must act within the framework of its constitutional and legal powers (paragraph 30).

The consulting judges, namely the judges of the Criminal Chamber of the Provincial Court of Pichincha, made several mistakes. However, the Admission Chamber framed the consultation by excluding the confrontation between the Constitution and OC-24/17. Therefore, under Article 428 of the Constitution, the Constitutional Court should only rule on the constitutionality of Article 81 of the Civil Code and Article 52 of the Identity Management Law.

6. SOME CONSTITUTIONAL MYTHS

Renowned international law scholars and constitutional law experts have stated that the majority judgment contains certain legal notions that are presented as truths, when in fact they are nothing more than legal myths.

The most favorable interpretation of rights leads to mistakes rather than correct conclusions when deciding whether it is more favorable to protect autonomy over dignity, or freedom of expression over the protection of victims.

The direct binding nature of international instruments is not automatic in the case of all instruments.

Conventionality control emerged in 2006, and since then the Inter-American Court of Human Rights has attempted to gradually deepen it, although there is no decisive consensus regarding its actual scope.