The case arose because, though the constitution's article 77 is pretty clear, it exists alongside Article 21, which bans discrimination based on sexual orientation. However, the court ruled that Article 77 excludes gay people's inability to get married from the list of factors that amount to illegal discrimination.
Of course, gay marriage is a famously emotive and divisive issue. Whether you're for it or against it, you can't help but notice that in the societies where it has become politicized, the debate has always come at the tail end of a long process of social and political change, shifting attitudes, and growing tolerance for gays and lesbians in the public sphere. Venezuela is very far from such a point.
A move like legalizing gay marriage should be the result of a serious, open democratic debate, where society comes to an agreement with itself about the best course moving forward. That's the province of politics, not court rooms, so any such reform needs to be taken through either Executive or Legislative action.
Supreme Tribunal justices are not held accountable to society: Mayors, Governors, Presidents and Congressmen are... por ahora. Sensitive topics such as this one should ideally be brought forward by accountable members of the State, so that its pros and cons are weighed, society can have an informed debate, and attitudes have the chance to change organically. Democracy assures that those processes can take place: when those who want change realize they have to answer to the voters, they will realize that for change to stick, the people have to be convinced.
These are not arguments our very red Supreme Tribunal is much aware of. The one dissenting opinion, by Justice Carmen Zuleta de Merchán, highlights a judicial culture where judges think they can do it all, as though they could change not just the law, but also the most intimate feelings and prejudices of the people through a court order.
Justice Zuleta regrets that the majority opinion,
"...decided not to solve legislative black holes, such as matters related to what happens when a gay union is dissolved by separation or death, the legal obligation to mutually help each other, guardianship by a permanent companion, the right to constitute a home, the issue of social security benefits for same-sex couples, the right to protection from saying anything against a permanent companion, the constitutional clause that prohibits friends or relatives from occupying similar posts, the possibility of a permanent companion to acquire citizenship, the right to adopt and protection against intra-family violence."Clearly debatable topics, and important ones at that. In fact, they are so important, it makes them hardly suitable for a simple judgement on something the Constitution is very clear about.
Justice Zuleta seems to be advocating for judges who are not only activists, but who legislate from the bench on sensitive topics and related issues. What she envisions is not a ruling on whether the Constitution allows for same-sex marriage or not, but basically a ruling that reads like an entire section of the Civil Code. That is a strange position to have in today's Venezuela.
Chavistas have complete control of the National Assembly. The President has an Enabling Law that allows him to dictate whatever law he pleases by simple decree. Chavistas appoint all of the country's judges at whim. And yet chavista judges lament that they don't have enough power, that they don't go far enough.
In a country such as the U.S., with its layers upon layers of checks and balances, it is understandable for some to want to see a role for judges wishing to shape legislation. Legislative work is made slow by the many parties involved, the numerous interest groups and the incredible differences between, say, local, regional and federal legislative bodies, and between the two equally powerful groups that share power in each of those instances.
This is not Venezuela's case. All the power in the country - judicial, economic, executive and legislative - is concentrated in one man. Zuleta's plea for judges to do more does not mesh with the fact that the group in power is the same group that appointed her and, basically, writes her paycheck. This is a group that does not believe in consensus and does not believe in finding common ground with the other side because there is no other side. It's a group that believes reality changes automatically when laws change, that society will do what it's told because it is told to do so.
Chavez's Venezuela is a country where the laws are changed at a whim. Don't like the Constitution? Call an Assembly and change it. Don't like a law? Pass one in thirty days. Thirty days is not enough? Ask for an Enabling Law and write it yourself. The dizzying rate at which new legislation and regulations are passed in Venezuela makes it hard for the ordinary citizen, businessman or judge to keep up.
And yet some people think this is not enough. Perhaps Justice Zuleta can ask at the next PSUV meeting why chavistas haven't simply steam-rolled this law through the Assembly, or why Chávez hasn't decreed gay marriage to be legal on Aló, presidente.
Her beef should not be with her fellow justices nor with the conservatism of society. Her beef should be with the guy on top.