A recent study by Universidad del Pacífico Research Center (CIUP) shows that it is not only morally right, but also legally possible to recognize in Peru the validity of a same-sex marriage held abroad, such as the case of Peruvian economist Óscar Ugarteche, who got married in Mexico and after many years got a judge to order RENIEC to register his marriage with Mexican Fidel Aroche.
Moreover, the same study concludes that the contempt of the sentence could be "detrimental" to the national legal order and would place Peru as "non-compliant" with the human rights treaties to which it has been attached. This is due to the fact that discrimination based on sexual orientation would be endorsed, contrary to what is stated in the Constitution and in several international instruments ratified by Peru.
Constitutional principles
Within the framework of the research, the authors
Carlos J. Zelada and
Alonso Gurmendi - law professors and members of CIUP - found that homosexual couples were traveling to other countries to get married and then returned to Peru, more and more frequently. It was a matter of time before these couples began to request the recognition of their marriages before the Peruvian civil authorities. Therefore, both researchers inquired into the possible actions of legal operators - such as the RENIEC registries - in this situation, anticipating the Ugarteche case.
Although the Civil Code expressly states that marriage is the union between a man and a woman, the Constitution contains principles that are far more important, specifically the prohibition of discrimination based on sexual orientation, as explained by Zelada in the video. These same arguments were used by the judge who ordered RENIEC to recognize the marriage of economist Ugarteche, and which include the legal analysis of the international system of protection of human rights in cases of homosexual couples conducted by our researchers.
International precedents
RENIEC has announced it will appeal the sentence. This means going to a second judicial instance. If the refusal continues, the final verdict will be given by the Constitutional Court, which, according to the CIUP study, has already resolved cases where it has considered discrimination based on sexual orientation as a violation of equality. However, once the domestic sphere is exhausted, the case could be brought before international courts, where there are also important precedents in favor of equality.
Zelada is also author of research on the legal history of same-sex marriage in the international system of protection of human rights. It is titled ¿Camino al altar?: El matrimonio igualitario en el Derecho Internacional de los Derechos Humanos (Way to the altar?: Same-sex marriage in the International Human Rights Law) and will soon be published in an international journal after being presented at universities in Norway and Belgium, as well as in New York.
Based on this research, Zelada states that the international courts - if the Ugarteche case reached these instances - "are ready, after many years, to respond positively to the question of whether there is a human right to get married regardless of sexual orientation". As he wrote in a
column in El Comercio, "the winds of equality blow the arid offices of the Peruvian courts of justice".