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Family and Marriage on Trial

Chilean human-rights case involving lesbian relationship could have far-reaching effect.

BY TOM McFEELY

| Posted 10/10/11 at 7:14 AM

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WASHINGTON — A case before the Inter-American Court of Human Rights could have negative consequences throughout the Americas for marriage and the family, religious freedom and national sovereignty.

The case involves a child-custody claim advanced by a Chilean judge who abandoned her marriage to pursue a lesbian relationship.

Chilean father Jaime López Allende has had sole court-ordered custody of his three daughters for the last eight years and is the girls’ preferred custodial parent.

Despite these facts, the transnational Inter-American Commission on Human Rights has ruled in favor of awarding custody to his ex-wife, Karen Atala. The Washington, D.C.-based commission concluded Chile’s courts impermissibly violated the American Convention on Human Rights by denying Atala custody because of her “sexual orientation.”

The commission’s non-binding decision is now before the Inter-American Court of Human Rights, which has authority under the American Convention on Human Rights to issue binding rulings on nations that are parties to the convention.

“I believe the intent here is to fabricate an illegitimate transnationalist jurisprudence to alter the essential foundations of Chilean society — family and marriage,” Bishop Juan Ignacio González Errazuriz of San Bernardo, Chile, told the Register via email. “This is undoubtedly a very grave concern.”

Bishop González’s concerns about the Atala case are shared by the Alliance Defense Fund, an Arizona-based legal organization dedicated to protection of religious freedom, the sanctity of life and marriage and the family. The commission’s decision contained four fundamental flaws, according to a legal brief the ADF submitted last month to the Inter-American Court.

First, the ADF brief argues, the Inter-American Court would undermine national sovereignty and “most certainly exceed its competency” by intervening in a matter that Chilean courts handled in full conformity with that country’s laws and legal procedures. Second, the amicus brief points out that “sexual orientation” isn’t even mentioned in the American Convention on Human Rights and that there is no substantial body of international legal precedent or international consensus that “sexual orientation” is a protected human-rights category.

The third problem in the commission’s decision, according to the ADF, is that Chilean courts “determined that Karen Atala was an unfit mother for reasons unrelated to her sexual orientation.” Judges did consider certain aspects of Atala’s personal life related to her homosexuality that indicated she was an inappropriate custodial parent. But this didn’t violate Atala’s “right to privacy,” as concluded by the commission, since similar conduct by a heterosexual parent automatically would be regarded as highly relevant in determining custody.


Flawed Reading

Finally, the Alliance Defense Fund brief asserts, even if the court finds that Atala’s human rights were violated, it is still bound to reject the commission’s custody finding because international law holds that the children’s best interests trump all other factors, and the facts establish Allende as a superior custodial parent.

The commission declined to comment directly on the case because it is now before the Inter-American Court. But in information posted on its website, the commission asserts human-rights violations can warrant an order to rewrite national laws in cases where national courts have rendered decisions fully in accordance with existing laws. And while the commission acknowledges “sexual orientation” is absent from the American Convention of Human Rights, it asserts that this is included implicitly under the term “other social condition” in Article 1.1 of the convention.

That’s a flawed reading of the convention, according to Chilean law professor Carmen Domínguez, director of the Family Center of the Pontifical Catholic University of Chile. “The American Convention wasn’t ratified by the states in the understanding that it’s supposed to give to those instances the power to redefine which are the bases of its main institutions — where the juridical system of the country is constructed — and the family is one of them,” Domínguez said. “There’s no rule or principle in the convention that allows that.”

A collection of transnational legal activists, including several U.S.-based groups, are working in support of the commission in advancing Atala’s custody claim. Domínguez views the case as part of an orchestrated effort to impose a radical agenda on Catholic nations like Chile.

“The Atala case has been fabricated upon falsehoods because, in fact, we can’t find in Chile another example where the lesbian or homosexual orientation of a mother or father per se has been debated in front of the judges,” asserted Domínguez.

“So it is clear that we can’t say there’s a persistent discrimination based on sexual orientation, neither in the jurisprudence nor in the law, which is what the other side has premised its case upon.”


Not Binding on the U.S.

Domínguez said Catholics in the United States should be worried about the implications of the case.

“Of course they must be concerned, because, as Pope Benedict has said repeatedly, one of the non-negotiable principles of our faith is the promotion of the family founded in a marriage between a man and a woman,” she said. “And after a decision of the court recognizing sexual orientation as a suspect category, there’s no doubt that that principle is going to be questioned, not only in its recognition in the civil laws, but also in its recognition in Catholic rules, institutions and teaching.”

A decision in favor of Atala wouldn’t be binding automatically on the United States, which has signed but not ratified the American Convention on Human Rights.

But Alliance Defense Fund senior counsel Piero Tozzi, who is also a senior fellow with the Catholic Family & Human Rights Institute (C-FAM), cautions that international human-rights decisions have been cited as precedents by U.S. courts. A notable example was the U.S. Supreme Court’s 2003 ruling striking down Texas’s anti-sodomy law.

Noted Tozzi, “What happens abroad impacts the U.S.”

Register correspondent Tom McFeely writes from Victoria, British Columbia.

 

 

The Chilean Church’s Concerns

The Register spoke via email with Bishop Juan Ignacio González Errazuriz of San Bernardo, Chile, about the dangers the Karen Atala custody case poses for his country. Here is what Bishop González, who serves as a member of the Legal Advisory Committee of the Chilean Bishops’ Conference, had to say about the controversial case:

What are the concerns of the Church in Chile with respect to the intervention of the Inter-American Commission on Human Rights in the Karen Atala custody case?

The concern comes from all the consequences that the judicial decision can have. If [the Inter-American Court of Human Rights] recognizes sexual orientation as a “suspect classification,” this can be used to try to amend all the family legislation with the intent to legitimize same-sex unions and to promote adoption by same-sex parents, regardless of the best interests of the child, and to eliminate the consideration of sexual orientation in custody trials, thereby making it, in effect, a “supercategory” shielded from consideration by the trier of fact in assessing who is the more fit parent. In sum, the result could very well be a deconstruction of the concept of family, which is the fundamental group unit of society, resulting in a net loss to society.


Does the Church believe that the transnational commission is overstepping its bounds, and thereby injuring the common good of Chilean society, in its decision regarding the Atala case?

Speaking as the bishop of a diocese, I believe the intent here is to fabricate an illegitimate transnationalist jurisprudence to alter the essential foundations of Chilean society — family and marriage. This is undoubtedly a very grave concern.

Does this action by the commission constitute an attack on the religious freedom of Chilean Catholics and others who oppose homosexual rights?

If you accept sexual orientation as a “suspect classification,” you have effectively created a path to undermine religious liberty, which is one of the underpinnings of a free and democratic society. This is what we have seen happen in other societies that have accepted this fuzzy legal premise.


What actions are Church authorities undertaking in response to the decision by the commission in favor of Atala and the subsequent initiation of a case against the Chilean government in the Inter-American Court of Human Rights?

We have been in contact with the government to express our position, and we have been heard. We also have the active interaction with the government by renowned lawyers and law professors who are members of the Legal Advisory Committee of the Chilean Episcopal Conference.

We are also weighing in with our opinion against a non-discrimination bill in the Chilean Congress that introduced sexual orientation as a protected category. This bill had been fast-tracked for approval without due consideration of the potential negative effects such an amendment would have.

— Tom McFeely