Same-sex marriage has been legal in Spain since July 3, 2005. In 2004, the nation's newly elected government, led by Prime Minister José Luis Rodríguez Zapatero of the Socialist Workers' Party, began a campaign to legalize same-sex marriage, including the right of adoption by same-sex couples. After much debate, a law permitting same-sex marriage was passed by the Cortes Generales (the Spanish Parliament, composed of the Senate and the Congress of Deputies) by a vote of 187–147 on June 30, 2005, and published on July 2. The law took effect the next day, making Spain the third country in the world to allow same-sex couples to marry on a national level, after the Netherlands and Belgium, and 17 days ahead of the right being extended across all of Canada.
Roman Catholic authorities were adamantly opposed, criticising what they regarded as the weakening of the meaning of marriage, despite support from 66% of the population. Other associations expressed concern over the possibility of lesbian and gay couples adopting children. After its approval, the conservative People's Party challenged the law in the Constitutional Court. Approximately 4,500 same-sex couples married in Spain during the first year of the law. Shortly after the law was passed, questions arose about the legal status of marriages to non-Spaniards whose countries did not permit same-sex marriage. A decision from the Ministry of Justice stated that the country's same-sex marriage law allows a Spanish citizen to marry a non-Spaniard regardless of whether that person's homeland recognizes the union. At least one partner must be a Spanish citizen in order to marry, although two non-Spaniards may marry if they both have legal residence in Spain.
Rodríguez Zapatero and the Socialist Workers' Party were re-elected in the 2008 election, but the next election in 2011 delivered a landslide victory to the People's Party. Prime Minister Mariano Rajoy said he opposed same-sex marriage, but any decision about repealing the law would be made only after the ruling of the Constitutional Court. On November 6, 2012, the law was upheld by the court with eight support votes and three against. Minister of Justice Alberto Ruiz-Gallardón announced that the government would abide by the ruling and the law would not be repealed.
Legal history
Background and summary
The first law recognising cohabiting same-sex couples was passed in 1994 for the purpose of providing limited legal rights with regard to renting. During the 1990s and early 2000s, several city councils and autonomous communities opened registries for de facto unions (Spanish: unión de hecho, pareja de hecho or pareja estable) allowing benefits for unmarried couples of any sex, although the effect is mainly symbolic. Registries were eventually created in all 17 of Spain's autonomous communities; in Catalonia (1998), Aragon (1999), Navarre (2000), Castile-La Mancha (2000), Valencia (2001), the Balearic Islands (2001), Madrid (2001), Asturias (2002), Castile and León (2002), Andalusia (2002), the Canary Islands (2003), Extremadura (2003), the Basque Country (2003), Cantabria (2005), Galicia (2008), La Rioja (2010), and Murcia (2018), and in both autonomous cities; Ceuta (1998) and Melilla (2008). Spanish law already allowed single people to adopt children; thus, a same-sex couple could undertake a de facto adoption, but the partner who was not the legal parent had no rights if the relationship ended or if the legal parent died. Same-sex marriages were not legal in the autonomous communities, because the Spanish Constitution gives the State the sole power to legislate marriage.
The first legal proposals to legalize same-sex marriage occurred in 2001. The Aragonese Union, United Left, the Spanish Socialist Workers' Party (PSOE), the Initiative for Catalonia and the Galician Nationalist Bloc introduced five different measures to the Cortes Generales, but all were ultimately defeated by the People's Party, in government at the time under José María Aznar. The Spanish Socialist Workers' Party manifesto for the 2004 general election included the pledge of amending the Civil Code to introduce same-sex marriage, granting it the same status as heterosexual marriage in order to "ensure full social and legal equality for lesbians and gays". After the Socialists' victory in the election, Prime Minister José Luis Rodríguez Zapatero promised at his inauguration address to bring this change forward: "The moment has finally arrived to end once and for all the intolerable discrimination which many Spaniards suffer because of their sexual preferences. ... As a result, we will modify the Civil Code to recognize their equal right to marriage with the resulting effects over inheritance, labor rights and social security protection". On June 30, 2004, Minister of Justice Juan Fernando López Aguilar announced that the Congress of Deputies had provisionally approved a government plan for legislation to extend the right of marriage to same-sex couples. López Aguilar also announced two propositions, introduced by the regional Convergence and Union party of Catalonia: one would introduce legal status for both opposite-sex and same-sex common-law unions (parejas de hecho (pronounced [paˈɾexas ðe ˈetʃo]), "de facto unions"), while the other would permit transgender people to legally change their name and sex designation without the requirement of surgery. The bill regarding same-sex marriage was approved by the Council of Ministers on October 1, 2004, submitted to Parliament on December 31, and passed by the Congress of Deputies on April 21, 2005. However, it was rejected on June 22, 2005 by the Senate, where the opposition People's Party held a plurality of the seats. The bill was returned to the lower house, which holds the power to override the Senate, and final approval was given to the bill on June 30, 2005, with 187 "yes" votes, 147 "no" votes, and 4 abstentions.
With the final approval and enactment of the bill on July 2, 2005, Spain became the third country in the world to formally legalize same-sex marriages nationwide, after the Netherlands and Belgium. The first same-sex wedding took place eight days after the bill became law, and was performed in the city council chamber of the Madrid suburb of Tres Cantos between Carlos Baturín and Emilio Menéndez. The first same-sex marriage between women took place in Barcelona eleven days later. In the Basque Country, the first marriage for a male couple was performed in Vitoria-Gasteiz, and the first marriage for a lesbian couple occurred in Errenteria.
In spite of these steps toward equal treatment, a legal flaw remained: if children were born within a lesbian marriage, the non-biological mother was not legally regarded as a parent; she still had to undergo the lengthy financial process of adoption. This right was granted to heterosexual couples (married or not), where a stepfather could declare his wife's children to be his without further process. On November 7, 2006, the Spanish Parliament amended the law on assisted reproduction, allowing the non-biological mother to be automatically regarded as a parent alongside her female spouse.
Ratification of Law 13/2005
The projected bill announced on June 30, 2004 by the Minister of Justice was studied by the General Council of the Judiciary. Although the General Council admitted that the existing discrimination against homosexuals could not be condoned, it was quite critical about extending marriage toward same-sex couples (including collateral adoption). It argued that the extension was not demanded by the Constitution, and that ending discrimination could be achieved through other legal means, such as the extension of civil unions.
Despite this negative report, the Zapatero Government presented the bill to Congress on October 1, 2004. With the exception of the People's Party and members of the Democratic Union of Catalonia, the different parliamentary parties favoured the reform. On April 21, 2005, Congress approved the bill, with 183 "yes" votes (including a member of the People's Party) and 136 "no" votes and 6 abstentions. The bill to allow same-sex marriage in Spain was short; it added a new paragraph to Article 44 of the Civil Code, saying that: Matrimony shall have the same requisites and effects regardless of whether the persons involved are of the same or different sex.
In accordance with constitutional provisions, the text approved by the Congress was then submitted to the Senate for final approval, change or veto. On June 21, 2005, experts were called to the Senate to debate the issue. The expert's opinions were diverse; some stated that same-sex adoption had no effect on a child's development, except for perhaps a higher tolerance towards homosexuality. However, psychiatrist Aquilino Polaino, called by the People's Party as an expert, called homosexuality a pathology and emotive disorder. Among other assertions that generated debate, he claimed that "many homosexuals have rape abuse antecedents since childhood" and that homosexuals generally come from families with "hostile, alcoholic and distant" fathers, and mothers who were "over protective" toward boys and "cold" toward girls. Prominent People's Party members later rejected Polaino's assertions.
The Senate vetoed the text submitted by the Congress. The veto was proposed by the People's Party, which held the plurality of the seats, and by the Democratic Union of Catalonia, and was approved by 131 "yes" votes and 119 "no" votes and 2 abstentions. As a result, the text was sent back to the Congress. On June 30, 2005, it was approved by Congress, which, in accordance with constitutional provisions, overrode the Senate veto. This was achieved with 187 "yes" votes (including a member of the People's Party, Celia Villalobos), 147 "no" votes, and four abstentions. The veto override implied its approval as law. The vote was held after Zapatero unexpectedly took the floor to speak in its support, saying "We are expanding the opportunities for happiness of our neighbors, our colleagues, our friends and our relatives. At the same time, we are building a more decent society." Mariano Rajoy, the leader of the opposition People's Party, was denied the opportunity to address Congress after Zapatero's appearance, and accused Zapatero of "dividing Spanish society".
When the media asked King Juan Carlos I if he would sign the bill that was being debated in the Cortes Generales, he answered that he was the King of Spain, not of Belgium – a reference to King Baudouin of Belgium, who refused to sign the Belgian law legalising abortion. For the King to withhold his royal assent, it would effect a veto of the legislation. However, the King gave his royal assent to the law on July 1, 2005, and the law was gazetted in the Boletín Oficial del Estado on July 2, and came into effect on July 3. The King received criticism by Carlist and other far-right conservatives for signing the legislation.
Reactions
The bill's passage was met with concern by Catholic authorities, including Pope John Paul II—who warned of "a weakening of family values"—and his successor Pope Benedict XVI. Cardinal López Trujillo, president of the Pontifical Council for the Family, said the Church was making an urgent call for freedom of conscience for Catholics and appealing to them to resist the law. He said every profession linked with implementing same-sex marriages should oppose it, even if it meant losing their jobs. LGBT rights supporters argued that while the Catholic Church also formally opposed opposite-sex, non-religious marriage, its opposition was not as vocal; for example, the Church did not object to the marriage of Prince Felipe to Letizia Ortiz, who had divorced from a previous civil marriage. The Church was unable to gather enough support to derail the bill, even though more than 60% of Spaniards identify as members of the Catholic faith. Sociologists believed this may be due to a significant increase of cultural liberalism in the realm of individual rights in recent years, where the Church traditionally had most influence, especially on family issues. A poll showed that three quarters of Spaniards believed the church hierarchy was out of touch with social reality. A complementary explanation might be that the Church's influence on Spaniards declined after the death in 1975 of General Francisco Franco, whose regime was closely linked to the Church.
Prime Minister Zapatero responded to church criticism by saying:
There is no damage to marriage or to the family in allowing two people of the same sex to get married. Rather, these citizens now have the ability to organize their lives according to marital and familial norms and demands. There is no threat to the institution of marriage, but precisely the opposite: this law recognizes and values marriage. [...] Aware that some people and institutions profoundly disagree with this legal change, I wish to say that like other reforms to the marriage code that preceded this one, this law will not generate bad results, that its only consequence will be to avoid senseless suffering of human beings. A society that avoids senseless suffering of its citizens is a better society. [...] In any case, I wish to express my deep respect to those people and institutions, and I also want to ask for the same respect for all of those who approve of this law. To the homosexuals that have personally tolerated the abuse and insults for many years, I ask that you add to the courage you have demonstrated in your struggle for civil rights, an example of generosity and joy with respect to all the beliefs.