In the period 1994–2007, the Colombian Constitutional Court was open to the recognition of individual rights to LGBTI community members, but not their right to form legally covered unions. When confronted during that period with the first constitutional challenge of Law 54 of 1990 – a law that recognizes legal effects to de facto marital unions of heterosexual couples- under the charge that it infringed their constitutional rights because it discriminated against homosexual couples by excluding them from its coverage,¹³ the Court declared that the law’s sole recognition of legal entitlements to heterosexual couples and the exclusion of same sex ones was in agreement with the Constitution.

The Court based its decision on the constitutionality of the law in three main arguments. First, it used a teleological argument to indicate that with the enactment of Law 54 the legislature attempted to grant legal recognition to natural families. This meant families formed by a man and a woman who were not legally married but that had shared their lives for a period of 2 years or more. Furthermore, the legislature established the rights and duties that the parties were entitled to as a consequence of such family formation. As same-sex couples did not fall under the legal structure of heterosexual unions, same-sex couples’ exclusion from the law’s scope of protection was justified. Second, after arguing that from a constitutional point of view homosexual behaviors were valid and legitimate options of individuals which the State could not forbid or limit, the Court indicated that the exclusion of same-sex couples from this statute did not impinge on the exercise of their constitutional rights. If this was proven to be the case, then a more thorough examination of the constitutionality of the law should take place.¹⁴ Third, the Court claimed that the constitutional mandate that established the protection of natural families included in article 42 of the Chart¹⁵ was linked to the heterosexual character of the union, a condition left unfulfilled by same-sex couples and further justified their exclusion of its scope of protection.¹⁶

Two of the nine constitutional justices took the opportunity to clarify their vote for the constitutionality of the law arguing that it would be “fair and appropriate that the law established a property regime to benefit same-sex couples (…) regardless of whether they are considered a family formation or not,” but that such an endeavor should be carried out through Congress after a public deliberation on the matter.¹⁷ Two more of the justices seized the opportunity to clarify that “homosexuality could hardly be accepted as a valid, lawful and constitutional source of the family, which, by its very nature is based on procreation, which is possible only between heterosexual couples.”¹⁸

Despite the defeat that this as well as other decisions¹⁹ meant to the gay and lesbian rights agenda, two important outcomes followed from them. First, the legal processes that led to these decisions and the public debate after them, generated mass media coverage. This visibility allowed gay and lesbians to voice publicly their concerns. Furthermore, the LGBTI community demonstrated the ways in which society discriminated against them. The news coverage may have created more tolerances in the public’s perception perspective on sexual diversity.²⁰ Second, LGBTI rights activists started to organize, create new associations²¹ and formulate new strategies or refurnish earlier ones (grassroots work with community members, legislative initiatives, and litigation) to accomplish the social and legal inclusion of homosexual community members.²²

The task of resorting to the legislature, however proved futile. Sponsored by a member of the Liberal party and supported by the leftist party Polo Democrático, activists introduced a bill in 2001 to recognize the unions of same sex couples. Moreover, the bill recognized same sex couples’ entitlements in terms of property regime and other rights and duties. The proposed bill faced criticism from the Catholic Church and from conservative leaders who warned that the bill would permit the acceptance of same-sex couples as a family formation and even possibly grant them adoption rights which, in their opinion, was unacceptable.²³ The same result occurred two more times with the same proposal. The defeats in the legislature and the lack of both political momentum and legislative majorities to turn the proposal into law forced LGBTI activists to turn again to the Constitutional Court.²⁴

Colombia Diversa (an NGO working for the rights of the LGBTI community) and the Public Interest Law Group (G-DIP) formed an alliance in 2006 at Universidad de los Andes, with the purpose of trying a new constitutional challenge against Law 54 of 1990. In this opportunity, the task was to show to the Court that the law violated the rights to live with dignity, freedom of association, and equality of same-sex couples, and that a considerable detriment could effectively be shown as derived from their exclusion from the scope of protection of Law 54. Accordingly, the arguments presented in the case depicted several ways in which Law 54 curtailed the rights of same sex couples, in areas such as criminal law (a lack of protection in cases of domestic violence and the right not to incriminate the permanent partner), family law (lack of right to alimony), and labor law (lack to the right of social security benefits and the right to pension transfer when one of the members of the couple passed away).

In a strategic move, G-DIP and Colombia Diversa distinguished the concepts of “couple” and “family” from one another in the document delivered to the Court. The alliance argued that the concept of “couple” regardless of the sexual orientation of its members, refers to an associative form that is different from the “family,” and that a life lived in a couple persists independently from the family. Therefore, the legislature may subject the concepts of “family” and “couples” to diverse legal regulation. The way in which the alliance framed the issue possibly relieved the Court from considering Law 54 under article 42 of the Chart which in the standing precedent defined the family as the union formed by “a man and a woman.” The Court instead focused on the property regime applicable to heterosexual couples and its extension to same sex ones. Also, the thoughtful and well-crafted argument potentially persuaded the most conservative justices in the Court that this was not an issue that concerned or would imply a change in the concept of the heterosexual family protected by the Constitution.

The argument was successful. In this case (C-075/07), the Court declared the same property regime established for heterosexual couples was also applicable to homosexual ones.²⁵ In the words of the Court:

[t]he legislative decision not to include homosexual couples in the property regime provided for de facto marital unions actually entails an unjustified restriction on the autonomy of the members of such couples and can have harmful effects, not only because it impedes the realization of their life project together, but because it does not offer an adequate response to conflictual situations that may arise when for any reason the cohabitation ceases.²⁶

The Court explained that the change in the constitutional precedent resulted from the efficacy of the challenge in demonstrating the harmful effects suffered by members of same-sex couples due to the inapplicability of the property regime established under Law 54. Notably, however, the Court cautiously crafted the arguments that support the holding in terms of the rights to human dignity and autonomy of individuals with non-normative sexualities, and restricted the discussion of its decision’s effect to the patrimonial rights of same sex couples. Any consideration about how this judgment could change the family regime in the legal or constitutional context is completely absent. In fact, in the whole decision there is not a single sentence in which the concept of family is related in any way to same sex couples. Henceforth, gay and lesbian couples whose members shared a continuous and monogamous cohabitation for a minimum period of 2 years were entitled, thereafter, to a regime of marital property²⁷ identical to the property regime for marriages. In all other areas, same-sex couples had no rights.

The decision, narrowly tailored to provide same-sex couples property rights but not their recognition as a form of family, allowed for eight of the nine justices to agree on its holding. As some scholars have pointed out, this decision is indicative of the change that has taken place in the popular perception of sexual diversity in Colombia, which reached even traditionally conservative justices whose morality and world view is closely intertwined with catholic religious beliefs.²⁸ The dissenting judge voted against the majority decision because he found that it fell short in the recognition of same sex couples’ rights and that the decision to restrict its effects to the patrimonial rights of de facto marital unions left out other civil effects, also derived from the harmonious interpretation of the law in the context of the complex family effects of Law 54. According to this dissenting justice, if the Court had analyzed these effects, its decision should have extended the rights to marriage, adoption and child custody regime to same sex couples.²⁹ In a separate document, three conservative justices clarified their vote for the conditional constitutionality of Law 54 arguing that they decided to support that decision only after making sure that it did not require or imply a change in the constitutional precedent with regards to the heterosexual family, which, in their understanding, was the only family protected by the Chart.³⁰

Conservative justices seemed confident that their decision in this case solidified the Court’s precedent against the recognition of other rights for same sex couples, in particular their right to be recognized as family. By doing so, the Court included gay and lesbian couples under a fragmentary regime of the civil and family rights to which heterosexual couples were entitled, but it seemed, out of the Court’s consensus, that was as far as they would get.

Based on the precedent set by decision C-075/07, advocates brought before the Court legal rules and factual situations that involved same-sex couple’s rights that the Court had previously denied. Advocates expected that the rulings under the new precedent would lead to grant other sets of rights. In the 2 years following the decision on de facto marital unions, the Court extended to members of same-sex couples the right to affiliate their partners to mandatory health programs,³¹ the right to receive pension survivor annuities when one of the partners passed away,³² and the right of the party in need to receive alimony after the cohabitation ceased under penalty of prison.³³

C-029/2009 was the last important decision from this period regarding same sex couples. In this decision, the Court declared the conditional constitutionality of 26 laws that established rights and duties for heterosexual couples. Moreover, the Court declared that the clauses “family,” “family group,” “spouse,” and “permanent partner” should be understood as also covering same sex couples. Five categories group the challenged rules in the case: (i) civil and political rights; (ii) sanctions and contingencies regarding crimes and misdemeanors; (iii) rights of victims of heinous crimes; (iv) access to and exercise of public office and eligibility for government contracts and (v) subsidies and social benefits.³⁴

One of the rules challenged in this case broadened the fragmentary family regime that covered same sex couples. As a matter of family law, the decision provided that same-sex couples were also obligated to provide child support and alimony under the applicable rules of the Civil Code. The Court declared that other rules that have a material impact on family relations because they distribute power between family members but, that were not included in the traditional area of Family law because they did not pertain to the Civil Code also covered same sex couples. These new entitlements included the right to constitute marital property and housing as “family property,” which implied that these assets were withdrawn from the market and they could not be attached or used as collateral. Moreover, the Court extended the protection to same-sex couples against embezzlement and squandering of family property.³⁵ Additionally, the Court extended the same protections heterosexual couples had against domestic violence to same sex couples, as well as the right to access family subsidies for social services and housing,³⁶ and the right to be beneficiaries of compensation under the Mandatory Driver Insurance (SOAT) for death due to traffic accidents.

Although in this case the Court’s ruling extended the expression “family” to reach same-sex couples, the Court made clear that it did not change the concept of family protected under the Constitution, which was traditionally interpreted as monogamous and heterosexual. The Court, moreover, could not have changed the concept of family because the constitutional challenges did not include an argument asking to broaden the concept. Two years later, however, LGBTI activists asked the Court to examine the concept of family protected under the Constitution when they turned their focus to “the marriage issue.”

LGBTI activists presented a new constitutional challenge to the Court regarding a group of laws that described the concepts of marriage and family as those constituted by a man and a woman who unite through legal or natural ties with the objective of procreation. The content of the challenged rules reproduced, at least partially, the text of article 42 of the Charter, which in the relevant part states: “The family is the fundamental unit of society. It is constituted by natural or legal ties, by the free decision of a man or a woman to marry, or by the conscious desire to create one.”

The issue presented to the Court had three subsections. First, activists asked the Court to interpret harmoniously the challenged laws with Colombian constitutional rights and principles. Second, activists requested a re-interpretation of article 42 of the Charter, which meant that the Court should rule on the constitutionality of marriage between same sex couples. Finally, if the court found that same sex marriage is constitutionally mandated, it should change the standing precedent that restricted the concept of family to heterosexual and monogamous relationships.

The impeached laws allegedly violated the rights to equality, free development of personality, to a life with dignity, recognition of the marital status, intimacy and reproductive autonomy of same sex couples. According to the arguments that supported the challenge, a harmonious interpretation of these constitutional rights recognized the right to marriage for same sex couples. Furthermore, the challenge stated that sexual orientation caused a deficit in protection, which, in essence, was a discriminatory treatment against gays and lesbians. Consequently, the Court identified five different issues that it had to evaluate regarding the constitutional definition of the family as stated in article 42: “(i) to determine the constitutional scope with regard to the family and marriage, (ii) to ascertain whether different types of families were included under the constitutional protection, (iii) to establish whether the union of same-sex couples was consistent with the notion of family, if so, (iv) to determine whether it is subject to constitutional protection, and, if so, (v) what was the scope of this protection and who was entitled to provide it.”³⁷

Thus far, the traditional understanding of the majority of the Court was that the literal interpretation of the constitutional provision yielded two forms of family: first, one united by legal ties and conformed by “the free decision of a man and a woman to marry;” and second, another one united by natural ties and formed by “the conscious desire to create one,” that is, the de facto marital unions. The Court said that this interpretation seemed to mandate the constitutional protection as an exclusive prerogative to the family formed by a man and a woman.³⁸ However, dissenting justices in earlier cases had provided a competing interpretation of the wording in article 4.³⁹ For those justices, the two propositions considered in article 42 were alternatives, and although the institution of marriage was associated with the heterosexual couple, evidenced in the “man and a woman” clause, the “conscious desire to create one” was not equally determined. Instead, the justices argued that this last clause could work as recognition that both heterosexual and same-sex couples may unite through a conscious decision to do so, and, under this understanding this was an institution different from marriage. Moreover the argument went, the framers did not have the intention to limit the concept of family to the heterosexual couple because the Charter did not contain a provision that banned same sex unions. This interpretation, as considered by the dissenting justices in those earlier cases, was more plausible and respectful of the rights and principles included in the Constitution, and was the outcome of a harmonious interpretation of its tenets. Despite the fact that these arguments had been debated in Court since 2007, and included in dissenting opinions since then, the majority decision in earlier cases had sided with a literal interpretation of the wording of article 42. However, this interpretation was about to change.

Using a realistic approach, the Court acknowledged that there was a paradox in the confrontation of the literal content of article 42 which seemed to determine once and for all the concept of family, and the fact that the concept was essentially variable and deeply sensitive to the influences of changing social mores. Using the precedents set in earlier decisions, the Court recognized that its own interpretation of what constituted a family was not mandated centrally or exclusively by the constitutional phrasing, but, instead, by the relationships that citizens naturally build between each other. Examples of this broader interpretation of the family included the recognition of single parents and their children as a family; the recognition of foster families as family; cases in which grandparents are in charge of their grandchildren, or elder brothers in charge of their siblings. The concept of family, then, encompassed not only the natural community formed by parents, siblings and close relatives, but it even incorporated persons that were not related to each other through ties of consanguinity.⁴⁰ The Court explained that the particular characteristics of a social, participatory and pluralistic state⁴¹ which includes between its aims the protection of the liberties, beliefs and rights of citizens sustain the constitutional protection of these different formations of family. Moreover, the pluralistic nature of the Colombian state was clearly in tension with the imposition of a unique type of family to the exclusion of others that did not conform to the one that was recognized.

The implications of a broader understanding of situations that could be considered a family, that extend beyond the exact phrasing of article 42 led the Court to conclude that “heterosexuality is not a characteristic that is predicable of all kinds of families, neither is the existence of consanguinity ties as a foster family shows.”⁴² If neither heterosexuality nor consanguinity were essential characteristics of the family, What was essential to it? The Court held that the common denominator of the social formations known as family and whose realities distanced from the characterization of the family under article 42 were “love, respect and solidarity” as well as “a union of life or destiny that intimately links its members.”⁴³ Out of this line of reasoning, the Court concluded:

A couple who freely expresses its consent or joins with long-term expectations, is already a family, both in marriage and in de facto marital unions, which traditionally and for different purposes, has been accepted as a family even without descendants. Therefore, the situation cannot be different in the case of homosexuals that form a stable union.⁴⁴

This understanding of the family focused on the particular kinds of relationships that were built between its members which translated into a long term commitment of love, care and solidarity, instead of the earlier focus on the biological sex of the parties. Finding that those conditions were present both between heterosexual and same sex couples, the Court reached the conclusion that same-sex couples were also covered by the family protected under article 42.

The Court explained the change of precedent through the concept of “living constitution,” which implies thinking of constitutional rules as dynamic entities whose meaning is not set exclusively by the intention of its drafters or the meaning of its phrasing at the moment of enactment. Instead, according to this school of legal interpretation, the meanings of constitutional rules continue to change with the passage of time, the variation in people’s perceptions and the evolving social, political or economic necessities and ideas. Finding that these changes had taken place in the Colombian social context the Court extended with its decision the scope of the rules that define the family.⁴⁵

After concluding that same-sex couples are a form of family that deserves the constitutional protection established in article 42, the Court faced the issue of determining which protections and guarantees given to heterosexual couples had to be extended to same sex couples. Specifically, the Court focused on the right to marriage. According to the challenge, the deficit of protection that same-sex couples faced was due to their discriminatory exclusion from the possibility of entering into a committed and monogamous relationship that legally tied them (through rights and duties) at the time they gave their consent to start a life together. Instead, same-sex couples had to cohabit for 2 years before any legal effects took place between the partners. During the 2-year period of legally unbinding relationship, many situations may occur that leave one or both partners in a vulnerable situation.⁴⁶

The Court answered this issue through a categorical statement: “the specific protection of the family and marriage of heterosexual couples is an unavoidable constitutional mandate.”⁴⁷ Accordingly the only way to formalize a union between heterosexual partners was through marriage. At the same time, the Charter did not ban same sex marriage in any express way, so it could be concluded that some kind of legal institution that solemnizes the voluntary commitment of same-sex couples was a viable alternative. Moreover, the lack of such institution contravened the Constitutional right to free development of personality because it restricted same sex couple’s right to freely decide on the formation of a family with all the legal formalities and protections heterosexual couples enjoyed. This did not mean, the Court argued, that whatever institution was designed for same-sex couples needed to be the same