The process of popular consultation on the Draft Constitution of the Republic of Cuba began on August 13. However, many questions have arisen with respect to paragraphs 192 and 193, corresponding to the article on the institution of marriage.
But, why are there so many opinions about it? Is it too advanced for Cuba? Does it violate behavior patterns and threaten families? Does it endanger the good customs and education of children? The opinions of our population will be essential to write the near future of the country, but a misinterpretation of the text or a reading that favors only some of its articles will not be the solution for a better Law or for an increase of positive patterns of people's behavior.
The Constitution must become a principle of the legitimacy of the other laws and legal provisions that make up the legal system of any country. This has as a consequence that their parts cannot be seen separately and without any relation, a question that in the Consultation Processes cannot and should not be neglected. Today, while some people defend and others demonize Article 68, we must bear in mind that this becomes an extension of other paragraphs (articles) with which we do agree, and serve as a preamble.
In paragraph 30 (Article 1), it is established that Cuba is a socialist State of law, (...) organized with all and for the well-being of all, (...) which has as its essential objectives (...) justice and social equality ( ...) In paragraph (51) Article 13, it is declared that among the essential objectives of the State are: to guarantee the equality of rights and the fulfillment of the duties enshrined in the Constitution, as well as the absolute dignity and the integral development of the people.
A question then arises, the consensual union of two people lacerates this dignity ?, or if we agree with this paragraph, does it mean that we support this new conception taking into account that equal rights are for all?. This unquestionably leads us to paragraph (138) Article 39: The Cuban State guarantees the inalienable, indivisible and interdependent exercise of human rights, in accordance with the principle of progressiveness and without discrimination. Respect and guarantee are obligatory for all. Based on the above, who is entitled to formalized marriage? Only heterosexual families have the capacity to educate their children and protect older adults? Although today the debate focuses mainly on families made up of people of the same sex, we cannot forget that we also find those that are made up of only one parent (single parent), or by people who decide to join and form a new family starting to reconstitute (reconstituted or assembled families). When analyzing this, can they also be considered fundamental basic units of society? May they be the basis for future generations? Do they attempt against pre-established moral standards?
In this brief analysis, the content of paragraphs 140 and 141 cannot be omitted. Article 40: all persons are equal before the law, receive protection from the authorities and enjoy the same rights, freedoms and opportunities, regardless of sex, gender, sexual orientation, gender identity, ethnic origin, skin color, religious belief, disability, national origin or any other distinction detrimental to human dignity.
The violation of this principle is proscribed and is sanctioned by law. If I refer to what is being discussed, am I discriminating based on sexual orientation and gender identity, by forbidding two people from formalizing their relationship, without taking into account the sex of both? Is it possible to agree with the content of paragraphs 140 and 141 without contradicting 192, where is the non-discrimination based on gender? Do heterosexuals enjoy "more rights"? A simple reading of paragraph (143) Article 42 makes this question clear: the rights of people are limited only by the rights of others, collective security, general welfare, respect for public order, the Constitution and laws. It is not understood that a Constitution that seeks to update its content, similar to the society where it will govern, has contradictions within its text, contrary to the rights of others and privileging the rights of a few. A Law is not perfected taking into account patterns where prejudice prevails. Its essence must lie in the principle of legality and not forget that we are committed to continue being a State of law.
Paragraph 146, corresponding to Article 44, is incorporated, which I consider extremely mature due to its content: people have the right to the free development of their personality and must maintain a respectful, fraternal and solidary behavior. Not only for heterosexuals this becomes effective, taking into consideration that the personality characteristics previously mentioned go beyond gender.
As a Cuban jurist and citizen, I would be indebted permanently to my country and the Constitution if I did not stop before the previous reflections, by making it clear that paragraphs 192 and 193 (Article 68) cannot be alien to the rest. It is inconceivable that we encourage non-discrimination and at the same time prohibit attitudes that reflect that behavior. If so, we would not only disagree with Article 68, but with a large part of the Draft Constitution being analyzed, which will soon serve as the basis for updating the legislation.
