Spain Legalizes Same-Gender Marriage

Spain became only the third country, after the Netherlands and Belgium, to legalize same-gender marriages, granting the same rights enjoyed by heterosexual couples, including adoption and inheritance, to same-gender couples.

Date June 30, 2005

Locale Madrid, Spain

Key Figures

• Emilio Menéndez Spanish store-window decorator, married Carlos Baturin
• Carlos Baturin American-born psychiatrist, married Emilio Menéndez
• José Luis Rodríguez Zapatero (b. 1960), prime minister of Spain, 2004-    , legalized same-gender marriage in Spain
• Francisco Franco (1892-1975), dictator of Spain, ruled homosexuality illegal in 1954

Summary of Event

Historically, Spain has been a country with strong ties to the Roman Catholic Church and in strong agreement with the Church’s position against homosexuality. Indeed, under the rule of Spanish dictator, General Francisco Franco, homosexuality was outlawed in 1954. The 1950’s and 1960’s in Spain saw large numbers of gays imprisoned. However, some cities were more tolerant than others, and homosexual communities formed secretly in Barcelona, Ibiza, and Sitges. After Franco’s death in 1975, Prince Juan Carlos, who was far more liberal than his predecessor, moved to make the country more democratic, bringing a nationwide attitude shift that encouraged a much more socially open and tolerant atmosphere. Though Spain has retained strong connections to the Catholic Church, it has begun to distinguish between civil and religious life, and between public law and private conviction.

To that end, by the 1990’s, same-gender couples were commonly accepted in enough communities that some city councils allowed civil unions, granting local recognition to both homosexual and heterosexual couples. Although gay and lesbian couples still could not adopt children jointly, single people were allowed to adopt in Spain, which meant one partner could adopt a child who would then be raised by the couple together. As recently as 2001, though, the Spanish parliament was controlled by the conservative People’s Party, which had rejected a bill that would have created some equality for heterosexual and homosexual civil unions. National legal recognition was not possible for same-gender couples until the election of the liberal-socialist prime minister José Luis Rodríguez Zapatero in March of 2004. One of Zapatero’s election promises included the legalization of same-gender marriages.

On June 30, 2004, nearly a year before the final law passed Parliament, the Spanish Congress of Deputies (Parliament’s lower house) provisionally approved marriage rights for same-gender couples. However, this legislation did not become law without some intense controversy. In addition to heavy criticism and opposition from the Church, the legislation also faced disfavor from some politicians and from conservatives in the general populace. Nonetheless, a formal bill legitimizing same-gender marriage passed the Spanish cabinet on October 1, 2004, and was subsequently submitted to the Congress of Deputies on December 31 of that year. The bill added one sentence to existing Spanish marriage law: It states explicitly that a couple, of any gender make up, married in Spain has the same rights and responsibilities. The bill passed the Congress of Deputies on April 21, 2005, but then it ran into more heavy opposition in Spain’s senate (the upper house of Spanish parliament). Indeed, the senate rejected the bill on June 22, which in many situations means the death of a bill. However, once a bill is rejected by the Spanish senate, it goes back to the Congress of Deputies, which can override the upper house. The congress did just that, approving the controversial law by a vote of 187 to 147 on June 30. The bill’s final approval, on July 2, included royal assent and publication in Spain’s Boletin Oficial De Estato (official bulletin of the state); the new law took effect on July 3.

Significance

The first same-gender Spanish couple to marry under the new law was Spanish store-window decorator Emilio Menéndez and American-born psychiatrist Carlos Baturin. They held a small civil ceremony in the Madrid suburb of Tres Cantos on July 11, 2005. The couple stated they had not intended to be the first same-gender couple to marry in Spain, but that the marriage docket and timing of their paperwork had placed them first in line. On July 27, the Spanish government added that same-gender couples of which one member was a foreign national who married in Spain could expect to have their marriages considered valid under Spanish law, although the country of origin of the foreign national might not respect the union. The Spanish government, however, maintained the same residency requirement for all marriages, regardless of gender, stating that one member of the couple must be a Spanish citizen.

In May, 2006, the European Union (EU), of which Spain is a part, approved the cross-border rights of same-gender couples in the EU. The new requirements grant same-gender couples, who are legally married in a country that permits same-gender marriage, the same rights as heterosexual married couples in all EU member countries, regardless of the legality of same-gender marriage in those other countries.

The Spanish law’s opponents, including the Catholic Church, consider same-gender marriage an attack on the traditional family and believe the new law weakens the institution of marriage. The Spanish Conference of Catholic Bishops considers the legislation unfair but has placed the burden upon individual Catholics to defend traditional marriage and families. Politically, the conservative People’s Party has voiced a constitutional challenge to the law, and conservative newspapers have insisted that few gay and lesbian couples have married. However, the government estimates that the law will benefit 5 to 10 percent of the population.

Polls suggest that roughly 60 percent of the country, which is 80 percent Catholic, supports same-gender marriage, and roughly 50 percent of the population supports same-gender adoption. Throughout the process, Prime Minister Zapatero has balanced a respect for the Catholic Church while rejecting the use of Church doctrine to shape or otherwise influence Spanish law. He has stated repeatedly that the legislation allows individuals to make their own choices without imposing religious morality upon secular and civil issues.

Bibliography

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Mello, Michael. “Legalizing Gay Marriage.” Journal of Marriage and Family 67, no. 5 (2005): 1348-1349.

Moats, David. Civil Wars: A Battle for Gay Marriage. Orlando, Fla.: Harcourt, 2004.

Roca, Encarna. “Same-Sex Partnerships in Spain: Family, Marriage, or Contract?” European Journal of Law Reform 3, no. 3 (2001): 365-382.

“Same-Sex Marriage: A Selective Bibliography of the Legal Literature.” Law Library, Rutgers School of Law. http://law-library.rutgers.edu/SSM.html.

“Spanish Lawmakers Green-Light Same-Sex Marriage.” The Advocate, July 1, 2005.