Colombia’s Constitutional Court hosted a parade of international voices in a day-long forum on marriage equality, suggesting that it feels it must choose a side in a global debate not just national law.

Fernando Vergara / AP Claudia Zea and Elizabeth Castillo, one of the couples who managed to marry under the Constitutional Court's 2011 ruling.

Colombia’s top court held a day-long hearing on Thursday on whether it should interpret its constitution as giving marriage rights to same-sex couples — framing the debate in a wider discussion about whether international standards now dictate that marriage equality is a fundamental right. The hearing comes five weeks after the U.S. Supreme Court ruled to allow marriage equality, in a move that reverberated around the world. Unlike the U.S. Supreme Court, Colombia’s Constitutional Court weighs foreign precedent and international human rights law in its decisions. To discuss the question of marriage equality in Thursday's debate, the Court’s judges invited a broad range of international opinions, including representatives of the United Nations’ human rights office, the U.S.-based conservative legal group the Alliance Defending Freedom, and Albie Sachs, the former chief justice of South Africa’s Constitutional Court who authored a 2005 marriage equality ruling. The case concerns several technical questions of Colombian law — namely whether the constitutional clause defining marriage as between a man and woman trumps other provisions ensuring equality and the rights to family protections — but the list of participants may signal that the justices see themselves as also adjudicating a question that extends far beyond their country’s borders: Now that marriage equality is becoming the norm in almost all of the world’s developed democracies, should it be considered a fundamental right in countries that strive to meet a gold standard for human rights? And if the court concludes that this is the key question in this case, those arguing to uphold the existing marriage law appear to face an uphill battle. At least that seemed to be the concern behind much of the argument from the Vice-Attorney General, Martha Isabel Castañeda Curvelo, when she made her office’s defense of the law. (While the attorney general's office is in favor of the law, the government of President Juan Manuel Santos is supporting the case for marriage equality.) “In our country, fundamental rights should be interpreted according to the political constitution, not in accordance with the jurisprudence of foreign courts nor the opinions of invited experts,” Castañeda said in her presentation, a line that was blasted out by the attorney general’s office’s official Twitter account.

"En nuestro país los derechos fundamentales se deben interpretar de acuerdo a la Constitución": Viceprocuradora

Proponents of that view argued that the state regulates marriage because it is connected to reproduction, an argument forcefully rejected in June by the Supreme Courts of both the United States and Mexico. The “feelings between two people is not the subject of protection” under marriage law, argued Sofia Martínez Agraz of the Alliance Defending Freedom in her presentation. “The interest it is the procreation between a man and woman that is the reason for the state to intervene.” This litigation began more than five years ago when it was far from clear that marriage equality would gain traction outside of a handful of countries. When Colombia’s Constitutional Court took up a marriage equality case in 2011, Canada and Argentina were the only countries in the Americas that had marriage equality, and it wasn’t law in some of the European Union’s major powers either. Though the Colombian Constitutional Court had issued a string of rulings supporting LGBT rights reaching back more than 15 years, the ruling it produced in 2011 tried to duck the fundamental question, issuing what the primary LGBT rights attorney on the case, Mauricio Albarracín, called a “Frankenstein decision.” On the one hand, the court held that same-sex couples were entitled to the same legal protection as heterosexual couples and said the kind of partnership status that has been open to them since 2007 were insufficient. But it didn’t actually use the word “marriage,” nor did it immediately change anything for same-sex couples. The court held that Congress was obligated to change the family law within two years. As a backstop, the ruling said that if the deadline passed without new legislation, couples would be allowed to “formalize and solemnize a contractual link that permits them to constitute a family.” Congress failed to legislate, so in 2013 same-sex couples began trying to marry, and the officials that perform marriage split over exactly what the 2011 decision meant. Many interpreted the decision to mean the court meant a “solemn union” to be a new kind of partnership status distinct from both the existing partnership status and marriage, but around 40 couples were able to find judges who married them under their interpretation of the 2011 decision.

Helpful backgrounder from @ColombiaDiversa