International Courts and Domestic Political Backlash: The InterAmerican Court of Human Rights and Same Sex Marriage in Latin America

On January 8, 2018, LGBT groups across the Americas reacted with euphoria to an InterAmerican Court of Human Rights (IACtHR) decision requiring the legalization of same-sex marriage and transgender rights in Costa Rica and in all 20 signatory countries of the Inter-American Convention on Human Rights. The euphoria was short lived as the decision did not result in automatic compliance, but rather it generated a backlash against LGBT rights and the IACTHR itself. This paper traces the role of the IACtHR as an increasingly significant international legal opportunity structure for LGBT rights across the Americas. The paper unpacks that role and its impact through the case of SSM and transgender rights filed with the court by Costa Rican executive branch in 2016. The immediate impact of the IACtHR decision in Costa Rica was to throw the 2018 general election into turmoil allowing little known, minor Christian party to leapfrog all other parties into place in the first round of the Presidential election and to win 14 out of 57 deputy seats in the national congress. The core of the party’s success was its willingness to channel latent animus toward LGBT people into political support and to paint the Court’s decision as an illegitimate attack on Costa Rican sovereignty and social values. The fallout from the IACtHR’s decision raises difficult questions concerning the role and use of courts (international and domestic) to advance and protect rights, especially those of widely disliked minorities. This paper examines the Costa Rican government’s strategic and creative use of the IACtHR as a new international legal opportunity structure to advance and protect LGBT; rights that had been stalled in the legislative assembly for over a decade. The paper is theoretically informed by the broad comparative judicial literature to address the legitimate role of courts, their ability to impact domestic policy (and compliance with those decisions, and the potential and real effects of political backlash against the court’s decisions, especially those in favor of unpopular minorities.