Society and everything that it implies is enclosed in a complex system, manifested in various ways. Law, itself, arises as a derivative of socialization; with different social purposes. Therefore, knowing how the different social phenomenons are linked to law, (be they ideologies, movements, morals, and others), is of great importance.

For instance, take the impact of beliefs built on religions, and the way certain concepts are created for this reason. However, in today’s societies, the same concept can be understood in many ways; for example, ‘marriage’. Specifically, the analysis will be held around the revolutionary legalization of ‘Marriage Equality’ in the Republic of Costa Rica.

What Characteristics of the Law System in Costa Rica Should Be Known?

The Republic of Costa Rica is one of the few countries in the American continent that is known for being a Confessional State since it recognizes the Catholic Religion (Apostolic-Roman) as the official one. The characteristic of a Confessional State, according to Arce (2016), is: “one who adheres to and recognizes as official, a specific religion.” Therefore, in accordance with article 75 of the Political Constitution, it can be assured that Costa Rica is a Confessional State. However, the interference of this Church in abundant matters, especially political and legal, is highly limited; in addition, other religions are also allowed.

Understanding this, arises the question: What does the fact that Costa Rica is a Confessional State have to do with the legalization of marriage equality? It can be said that, since this religion has predominated, and continues to predominate in the country, the social preconceptions regarding values, practices, customs and others, are greatly influenced by this belief. How? Specifically, the fact that these are circumscribed in much of Costa Rican culture; for example, in the notion of what is and should be marriage.

For this reason, it is evident that the legislation has repercussions that emerge directly from society. An example is found in the historical construction of the Civil Code, which governed family matters based on Canon Law (Catholic law beliefs). For this instance, the opinion of the church influenced the creation of themes contemplated by the Family Code (1973). In particular, you can find a close link of these religious conceptions on topics such as marriage, divorce, family, adoption, among others.

What Is ‘Marriage’ and Why Is It Taken as a Legal Matter?

First of all, understanding the concept of ‘marriage’ is essential to know how it can be presented, depending on the area in which it is spoken. If analyzed semantically, the Royal Spanish Academy (2014) mentions five possible definitions of “marriage”, considering the religious and legislative conceptions. However, for the purposes of understanding this argumentation, the traditional definition of the religious-legal bond is the one to know, being: “the union of man and woman, arranged through criteria, rites or legal formalities, to establish and maintain a community of life and interests.”

According to Judaism, Catholicism, Christianity, Islam, and other religions, this link between man and woman has been established in the concept of a ‘marriage’; based on sacred texts, dogmas, practices, and others. For this reason, depending on the influences of beliefs within societies, in certain times and spaces, criteria for the regulation of marriage were formed; and it is precisely this regulation that has led to comprehend marriage as a legal issue.

Due to this, it can be synthesized that the conceptions of marriage revolve around social evolution and its characteristic elements, analyzed from the law as that human product, linked to societies and everything that is carried in them. Hence, the fact that in the new social consolidations the legal formality of marriage has been established beyond the religious concept.

“There are laws that come almost automatically from social practices and the dominant mentality of society so that the State does nothing more than give legal form and complete, and outline the material that is given by society itself.” 

As a result of this, what are known as sources of the law (despite the diversity of each legal system), are always involved with fundamental aspects of society. This way, there’s a bilateral relationship between society and law. According to Latorre, (2012):

“There are laws that come almost automatically from social practices and the dominant mentality of society, so that the State does nothing more than give legal form and complete, and outline the material that is given by society itself.” (pp.24)

According to the previously stipulated, it is again understood why, the fact that the majority of costarican society being Catholic, in addition to the Confessional State, led to the understanding of marriage according to the religious concept. In this way, the Costa Rican Family Code establishes its articles based on concepts of the “traditional family” of Catholicism, including marriage and its regulations.

Context of the Legalization of ‘Marriage Equality’ in Costa Rica

In accordance with the Family Code of Costa Rica, in chapters I and II the main conceptions of ‘marriage’ are established as the traditionally known union between a man and a woman. Article 14, point 6 prohibited the marriage union between people of the same sex. However, due to a series of social movements and legal considerations, influence of Human Rights and an International panorama, the legal approach to the concept of marriage was modified.

In August 2018, a resolution by the Constitutional Chamber of the Republic of Costa Rica nullified the subsection 6 that denied the marriage union between people of the same sex. In summary, in this resolution the Court founds unconstitutional point 6, article 14, by a series of facts.

First of all, the Political Constitution as such protects and bases Human Rights on a hierarchical superiority. In the UN Universal Declaration of Human Rights (UDHR) (1948) in articles such as 1, 2, and 7, equal rights and recognition of dignity are stated to all people, equally. Therefore, preventing the marriage union between people of the same sex (legally speaking) is a violation of Human Rights, to that of equal rights.

Specifically, article 16, point 1, of the UDHR stands out, which establishes: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to establish a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

Second, in the Political Constitution of Costa Rica, article 33, the Human Rights established by the UDHR are protected, as it states that: “Everyone is equal before the law and no discrimination against human dignity may be practiced.” In this way, it reinforces, even more, why the prohibition of equal marriage was not and is not protected by the maximum foundation (Political Constitution) of the Costa Rican nation;  despite the Family Code and the popular voice of the Catholic Church.

Third, under the author’s own criteria, article 52 of the Political Constitution establishes that: “Marriage is the essential basis of the family and rests on the equal rights of the spouses.” If analyzed semantically, the word “spouses” as such does not indicate that it must be a man and a woman but rather refers to a “person”, and the dictionary of the Royal Spanish Academy rectifies this fact. In such a way that it is evidenced, again, that one possesses a notion of “spouses” by religious criteria, above all. 

In addition to these three previous points, it should be noted that in this process, the Inter-American Court of Human Rights (which has a seat in Costa Rica) gives a series of observations to the Constitutional Chamber; in this way, the decision to annul subparagraph 6, Article 14 of the Family Code preventing marriage between persons of the same sex, consequently leading to the so-called “legalization of equal marriage”. 

In conclusion, it is evident that according to the deployment of societies, the law evolves together with these. The meaning referring to a concept, or to a law, is modified by the contingencies of certain moments. Social struggles, revolutions, ideological changes, among others, are congenial in the future reshaping of what is encompassed within a society, and therefore in law.

  

SUMMARY
– Law and society are closely linked, therefore, the different social phenomena will also influence changes in the Law and vice versa.
– Beliefs are translated into customs, activities, values, ​​and social conceptualizations, which carry with them a factor of incidence in the understanding of the issues. Specifically, observed in the legal system of a nation.
– Thanks to social evolution, the breaking of schemes, the transformation of ideologies, new knowledge, and so on, institutions are modified, prohibitions are lifted, and new social trends are built. For this reason, the change of the laws, of the conceptual and axiological construction in them, is imminent.

References

Arce, C. (May 17, 2016). Is Costa Rica a Confessional State? Semanario Universidad [online]. https://semanariouniversidad.com/opinion/costa-rica-estado-confesional/

Constitucional Chamber of the Republic of Costa Rica. (August 8, 2018). Resolution Nº12782-2018. [Vía: Nexus]. Retrieved from: https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-875801

Carbonell, J. (2016). Brief History of Costa Rican’s Law. San José, Costa Rica; ISOLMA S.A. pp. 275-289.

Latorre, A. (2012). Introduction to Law. pp.64

Robb, L. (1995). Dictionary of Legal Terms (Spanish-English, English-Spanish). New York: United States of America; John Wiley & Sons, Inc. 

Royal Spanish Academy. (2014). Marriage. Madrid; Spain.

Spouses. (October 6, 2021). Merriam-Webster.com https://www.merriam-webster.com/dictionary/spouse

United Nations. (December 10, 1948). Universal Declaration of Human Rights.  https://www.un.org/es/about-us/universal-declaration-of-human-rights

Sofía Poveda Garro
Law Student – University of Costa Rica
sofiapovedagarro@gmail.com