The Argumentative Boundaries of the Colombian Constitutional Court in the Light of Toulmin’s Theory: “The Case of Common-law Marriage for Same-sex Couples”

Abstract

The struggle for rights recognition undertaken by the homosexual population in Colombia has found in the judicial power a proper arena to advance their claims. This article presents the argumentative processes that unveil the conservative position recently assumed by the Colombian Constitutional Court regarding the rights recognition of the homosexual population. First, the article lays down a general overview of the decisions made by the Court on that issue. Then, it focuses on the decision C-075/07 that denied the extension of civil effects of the “unión marital de hecho” (cohabitation-common law marriage) in the same terms that they are granted to heterosexual couples. The analysis is undertaken in the light of Toulmin´s theory of argumentation and shows the necessity of using more comprehensive models of argumentation for analyzing decisions of Constitutional Courts with strong tendency to judicial activism.