Recognition of same-sex unions in El Salvador

In August 2016, a lawyer in El Salvador filed a lawsuit before the Supreme Court asking for the nullification of Article 11 of the Family Code which defines marriage as a heterosexual union. Labeling the law as discriminatory and explaining the lack of gendered terms used in Article 34 of the Constitution's summary of marriage, the lawsuit sought to allow same-sex couples the right to wed.[2][3] On 20 December 2016, the Salvadoran Supreme Court rejected the lawsuit on a legal technicality.[4]

A second lawsuit against the same-sex marriage ban was filed on 11 November 2016.[5] On 17 January 2019, the Supreme Court dismissed the case on procedural grounds.[6][7]

On 9 August 2019, a same-sex marriage case was admitted to the Constitutional Court. Originally filed in 2016 by activist Gabriel Gasteazoro, the case alleges that the provisions outlawing same-sex marriages in the Family Code are unconstitutional.[8][9] A ruling is expected in the first three months of 2020, but has been postponed since then.[10]

The Constitution of El Salvador does not explicitly ban the recognition of same-sex marriages. Article 32 reads: "The legal foundation of the family is marriage and rests on the juridical equality of the spouses."[lower-alpha 1]

In 2006, a constitutional amendment to ban the legal recognition of same-sex marriage was proposed. The measure was backed by the conservative Christian Democratic Party, then President Antonio Saca and several other parties; i.e. Democratic Change, the Front for Democratic Revolution and the National Conciliation Party.[12] But was opposed, and thus defeated, by the FMLN. It failed to win enough votes to be formally ratified due to the FMLN legislators.

While the Farabundo Martí National Liberation Front (FMLN) has consistently opposed attempts to amend the Constitution to prohibit same-sex marriage, citing their belief that such laws are discriminatory, the party has stated that it has no intention to legalize same-sex marriage.

On 30 April 2009, the Legislative Assembly of El Salvador approved a last-minute constitutional amendment that would have banned same-sex couples from marrying by defining marriage as being between only "a man and a woman" and barring them from adopting children. Civil rights groups vowed to fight the measure, which still needed to be voted on by other government branches before becoming law.[13] The amendment eventually failed the same month.

On 25 April 2012, a same-sex marriage and adoption ban was introduced to the Legislative Assembly. The measure eventually failed on 8 February 2014, after only receiving 19 votes in favor of its ratification.[14]

On 17 April 2015, a constitutional amendment to ban same-sex marriage and adoption was approved once again in the Assembly during its first reading with 47 votes in favor. To be successfully included in the country's Constitution, the law had to be ratified by a two-thirds majority of the Assembly, or 56 of its 84 members.[15] In November 2016, following a lawyer's constitutional challenge against the country's statutory same-sex marriage ban (see above), some conservative MPs renewed their efforts to constitutionally ban same-sex marriage.[16]

In January 2018, the Salvadoran Constitutional Court declared the proposed constitutional amendment banning same-sex marriage unlawful, because it was "fast-trecked through the Assembly and voted on urgently just days left in the session."[17]

On 8 January 2018, the Inter-American Court of Human Rights (IACHR) ruled that the American Convention on Human Rights mandates and requires the recognition of same-sex marriage. The ruling was fully binding on Costa Rica and set binding precedent in other Latin American and Caribbean countries including El Salvador.[18]

In the wake of this ruling, LGBT advocacy groups have urged the Government of El Salvador to abide by the ruling, and legalise same-sex marriage.[19]