Family, Marriage on Trial in Chile
BY Tom McFeely
October 23-November 5, 2011 Issue | Posted 10/17/11 at 10:41 AM
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 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.
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 (CIDH.oas.org/DefaultE.htm), 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 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.
Tom McFeely writes from Victoria, British Columbia.
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