Overcoming the Limits of Legal Opportunity Structures LGBT Rights’ Divergent Paths in Costa Rica and Colombia

• Published in: Latin American politics and society Vol. 61; no. 2; pp. 138 - 163
• Main Authors: Wilson, Bruce M., Gianella-Malca, Camila
• Format: Journal Article
• Language: English
• Published: Coral Gables Cambridge University Press 01.07.2019
• Subjects: Adoption; Bisexuality; Case studies; Chronic illnesses; Claims; Classification; Constitutional rights; Couples; Court decisions; Courts; Decriminalization; Democracy; Democratization; Developed countries; Digital media; Discrimination; Displaced persons; Enforcement; Equal protection; Equal rights; Equality; Gays & lesbians; Gender identity; Governance; Harassment; Health care policy; Homosexuality; In vitro fertilization; Interest groups; Judges & magistrates; Legal reform; Legalization; Legislative process; Lesbianism; LGBTQ people; LGBTQ rights; Litigation; Marginality; Minority & ethnic groups; Opportunity structures; Organizational effectiveness; Politics; Poverty; Prisoners; Property; Property rights; Protection; Public opinion; Referendums; Religious beliefs; Religious leaders; Same sex marriage; Sexual orientation; Social change; Social exclusion; Transgender persons; Colombia; United States > US; Latin America; Spain; Costa Rica
• ISSN: 1531-426X; 1548-2456
• DOI: 10.1017/lap.2018.76

Costa Rica and Colombia, two of the earliest Latin American countries to protect many LGBT rights, attempted to amplify those rights and litigate same-sex marriage (SSM) in mid-2000s; however, these attempts sparked a major anti-LGBT backlash by religious and conservative organizations. Yet a decade later, Colombia legalized SSM while Costa Rica still lacks the right to SSM. Using a most-similar systems comparative case study, this study engages the judicial politics literature to explain this divergent outcome. It details how courts, while staying receptive to many individual LGBT rights claims, deferred SSM legalization to popularly elected branches. In spite of the lack of legislative success in both countries, in Colombia a new litigation strategy harnessed that deference to craft a litigated route to legalized SSM. In Costa Rica, the courts’ lack of conditions or deadlines has left SSM foundering in the congress.