By Buchanan Waller*

In September, a large majority of Cuban voters approved a referendum to legalize same-sex marriage.[1] This referendum included a series of amendments to the “Family Code” of the Cuban Constitution.[2] These amendments also included legalizing same-sex adoption, prohibiting corporal punishment, allowing for surrogate pregnancies, and generally creating more expansive definitions of “family” under the law.[3] The complete draft of the 2022 Family Code contains 471 articles and is over 100 pages long.[4] The success of the referendum has established Cuba as one of the most socially progressive countries in Latin America, if not the entire world.

The first major law governing family policy in Cuba was the Spanish Civil Code of 1889, which enshrined the second-class treatment of both women and “illegitimate” children. This civil code was modified several times after Spain lost colonial control of Cuba and was completely overhauled after the 1959 revolution.

Following the revolution, Fidel Castro’s government persecuted Cuba’s gay population through police raids and sentencing to labor camps for periods of three years.[5] In 1975, Cuba established a Family Code as part of the new post-revolutionary constitution.[6] While the 1975 Family Code guaranteed equal rights between men and women, it also explicitly prohibited same-sex marriage.[7]

In 2018, Cuba’s legislature approved a new constitution which defined marriage as “a social and legal institution” without specifying a requirement of “one man and one woman,” as the old family code did.[8] This language ended the explicit constitutional prohibition on same-sex marriage without actually legalizing it.[9] President Miguel Diaz-Canel, himself a supporter of same-sex marriage, proposed a referendum to allow Cuban voters to decide the issue.[10] The proposal for a referendum was adopted.[11] Some Cubans opposed the referendum, arguing LGBT rights should be protected by the government without the need for a referendum.[12] Others believed same-sex marriage would enjoy more popular legitimacy if it was voted for by the people, instead of being imposed by a single-party state.[13]

Public Participation in Creating the Family Code

While Cuba’s government is derided as dictatorial by Western media and politicians, the 2022 Family Code was passed through a remarkably democratic process.

A draft of the proposed amendments was first published on September 15, 2021, just over one year before the vote was set to take place.[14] Over the next year, a series of public meetings were held to discuss, debate, and submit revisions to the draft of the amendments.[15] Over 6 million Cuban people (out of a total population of 11 million) attended town hall meetings during this process.[16] Over 70,000 meetings were held in total.[17] Over 300,000 suggestions were made by the public, which led to modifications to 48% of the provisions in the original draft.[18]When the final draft of the new Family Code was presented in June, it was the 25^th version.[19]

Groups from widely differing parts of Cuban society participated in the revision process. LGBT activists, including those from the Cuban National Sex Education Center (CENESEX), played a prominent role.[20] Another prominent player was the Committees for the Defense of the Revolution (CDR). These groups were neighborhood councils established following the 1959 Revolution, and previously had a notable role in promoting the government’s literacy campaign. CDR promoted neighborhood meetings and organized participation in the referendum process.

Other groups, including the Catholic Church, were also allowed to participate in the process.[21] The Catholic Church and a growing number of evangelical churches were among the biggest opponents of the 2022 Family Code.[22] However, they were given the opportunity to participate in the drafting process.[23]

This democratic process of drafting the Family Code was largely ignored by the Western press in the leadup to the vote on September 15^th. A Reuters report predicted the referendum supporters faced “an uphill battle” due to the island’s “machista” culture.[24] However, 74.2% of Cuban voters cast a ballot for the referendum, with 66.8% voting “yes” to approve the 2022 Family Code.[25] Same-sex marriage and other policies that support LGBT rights, women’s rights, children’s rights, and the rights of the elderly now have the stamp of approval of the Cuban people.

A Model for the United States?

            The U.S. outlets who covered the 2022 Family Code referendum often referred to it as “unusual.”[26] It is indeed hard to imagine Americans approving same-sex marriage and other reforms through a referendum. It is nearly impossible to imagine over half of the American population participating in town hall meetings to draft and refine the referendum and turning out in massive numbers to vote on it. The 74% voter turnout for the 2022 Family Code referendum was larger than in any national election in American history.[27]

            In the United States, equality under the law is often not voted on. Referendums only take place at the state and local level. The Supreme Court legalized abortion in 1973 by a vote of 7-2, and then un-legalized it in 2022 by a vote of 6-3.[28] The Supreme Court legalized same-sex marriage in 2015 by a vote of 5-4, and has indicated this decision may be tenuous.[29] While campaigning in 2008, Barack Obama promised he would pass legislation to codify abortion rights, but never made any attempt to follow through on this promise, despite his party having large majorities in both the House and Senate.[30] These major decisions which reflect our country’s values are rarely decided by any democratic process. This creates a weak foundation for the social progress our country has made. It also creates a legitimate grievance for those who oppose these changes and feel massive changes have been made to their country without their consultation, leading to further cultural pushback.

            Referendums at the state and local level have reflected social progress on issues including abortion, same-sex marriage, and drug legalization.[31] However, corporate interests have been successful in watering down these gains. In 2020, Uber, Lyft, and other gig work companies spent over $200 million to defeat a referendum which would have extended labor protections to their workers.[32] In 2021, St. Paul voted on a rent control referendum. Supporters of the referendum spent $300,000 on the campaign while opponents, largely through an out-of-state consulting firm, spent over $4 million.[33] Even after the ordinance passed with 53% approval, the St. Paul City Council voted 5-2 to effectively gut the ordinance.[34]

            These examples demonstrate major obstacles Americans will need to overcome to utilize referendums as a tool for creating greater equality under the law at the state and local level. Cubans simply did not have to contend with moneyed interests pouring billions of dollars into their elections. They approved the 2022 Family Code because it is what their people wanted. This was not an easy process. The successful result is the culmination of a long struggle, beginning in 1959. To win the country they wanted, Cuba had to contend not only with sexism and homophobia in Cuba, but also with a devastating U.S. blockade and a campaign of U.S.-sponsored terrorism.[35]

            Americans should be inspired by the 2022 Family Code vote. However, if we want to emulate Cuba – and we should – it won’t be easy. It will require a mass mobilization, good faith among all participants, and an elimination of influence large financial interests have on our politics. Just like in Cuba, it won’t be easy. Nothing worthwhile ever is.

[1] Mark Frank, Cubans Approve Gay Marriage by Large Margin in Referendum, Reuters (Sept. 27, 2022, 9:07 AM), https://www.reuters.com/world/americas/cubans-approve-gay-marriage-by-large-margin-referendum-2022-09-26/.

[2] Christiana Mesquita, Cuba Holds Unusual Vote on Law Allowing Same-Sex Marriage, AP News (Sept. 26, 2022), https://apnews.com/article/religion-cuba-caribbean-gay-rights-69dbfba5ead550e919294ceca401d82a.

[3] Id.

[4] Id.

[5] See Rafael Ocasio, Gays and the Cuban Revolution: The Case of Reinaldo Arenas, 29 Latin Am. Persp. 78-98 (2002) (describing the tactics Castro’s government used to suppress gay people following the revolution and throughout the 1960s); See also BBC News, Fidel Castro Takes Blame for Persecution of Cuban Gays (Aug. 31, 2010), https://www.bbc.com/news/world-latin-america-11147157 (“If someone is responsible, it’s me.”).

[6] Cuban Family Code, Mar. 8, 1975, (Cuba).

[7] Id. at ch. 1, art. 2.

[8] Charlotte Mitchell, Cuban President Miguel Diaz-Canel Backs Same-Sex Marriage, Al Jazeera (Sept. 17, 2018), https://www.aljazeera.com/news/2018/9/17/cuban-president-miguel-diaz-canel-backs-same-sex-marriage.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Sarah Marsh, Cuba Publishes Draft Family Code that Opens the Door to Gay Marriage, Reuters (Sept. 15, 2021, 6:12 PM), https://www.reuters.com/world/americas/cuba-publishes-draft-family-code-that-opens-door-gay-marriage-2021-09-15/.

[15] Dave Sherwood, Cubans Head to Polls to Vote on Government-Sponsored Code to Legalize Gay Marriage, Adoption, Reuters (Sept. 25, 2022, 4:41 PM), https://www.reuters.com/world/americas/cubans-head-polls-vote-govt-sponsored-code-legalize-gay-marriage-adoption-2022-09-25/.

[16] Julia Conley, In “Unprecedented Democratic Exercise,” Cubans Approve Inclusive Family Code, Common Dreams (Sept. 26, 2022), https://www.commondreams.org/news/2022/09/26/unprecedented-democratic-exercise-cubans-approve-inclusive-family-code.

[17] Id.

[18] Id.

[19] Id.

[20] See C.J. Atkins, Draft Family Code Brings Cuba Closer to Same-Sex Marriage Equality, People’s World (Sept. 17, 2021), https://www.peoplesworld.org/article/draft-family-code-brings-cuba-closer-to-same-sex-marriage-equality/ (describing the history of LGBT rights in Cuba and the role played by CENESEX leader Mariela Castro, the daughter of Raul Castro).

[21] Mesquita, supra note 2; See also On Cuba News, Catholic Bishops of Cuba Express Discrepancies with Family Code (Sept. 14, 2022) (discussing the opposition of Cuba’s Catholic leaders to the portions of the new Code which promoted “gender ideology,” same-sex marriage, and same-sex adoption. The Catholic church also urged its followers to participate in the referendum, saying that voting no “would not mean the impossibility of continuing to work on a new Code [with] all aspects positive that this law contains.” The church identified the positive aspects as the portions concerning “the protection of the elderly, children, the disabled and the vulnerable.”).

[22] Mesquita, supra note 2.

[23] Id.

[24] Mark Frank, Cubans Split over New Family Code as Referendum Nears, Reuters (Mar. 30, 2022, 6:19 AM), https://www.reuters.com/world/americas/cubans-split-over-more-liberal-family-code-referendum-nears-2022-03-30/ (citing to three unnamed experts to assert the referendum faced steep opposition).

[25] Conley, Supra notes 16–19.

[26] See Mesquita, Supra note 2.

[27] See United States House of Representatives, Election Statistics: 1920 to Present (last visited Oct. 5, 2022), https://history.house.gov/Institution/Election-Statistics/Election-Statistics/.

[28] See Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2228 (2022).

[29] See Dobbs at 2301 (Thomas, J., concurring) (arguing the Supreme Court should revisit the Obergefell decision).

[30] See Sheryl Stolberg, On Abortion, Obama is Drawn into Debate He Hoped to Avoid, N.Y. Times (May 14, 2009), https://www.nytimes.com/2009/05/15/us/politics/15abortion.html.

[31] Annie Gowen, How Abortion Rights Organizers Won in Kansas, Wash. Post (Aug. 3, 2022, 7:48 P.M.), https://www.washingtonpost.com/nation/2022/08/03/kansas-abortion-amendment/; see also Mona Zhang and Paul Demko, Where Cannabis Legalization Efforts Stand Across the Country, POLITICO (August 3, 2022, 4:30 A.M.), https://www.politico.com/news/2022/08/03/cannabis-legalization-efforts-across-the-states-00049224 (arguing direct referendums had been more successful than state legislatures at legalizing marijuana).

[32] Graham Rapier, Uber, Lyft, and Doordash Have Now Spent more than $200 million on Prop 22, Business Insider (Oct. 30, 2020), https://www.businessinsider.com/uber-doordash-lyft-prop-22-spending-200-million-close-polling-2020-10.

[33] John Slade, Big Money Scores Big with St. Paul Council’s Plan to Gut Rent Stabilization, Minn. Reformer (Sept. 20, 2022, 5:45 A.M.), https://minnesotareformer.com/2022/09/20/big-money-scores-big-with-plan-to-gut-st-pauls-rent-stabilization/.

[34] Id.

[35] See generally Ed Augustin, Sixty Years after U.S. Embargo, Its Imprint Affects Cubans’ Daily Lives, NBC News (Feb. 4, 2022, 3:59 A.M.), https://www.nbcnews.com/news/latino/sixty-years-us-embargo-imprint-affects-cubans-daily-lives-rcna14719 (detailing the effects of the U.S. embargo on everyday Cubans); see generally Andrew Bacevich, Washington Rules: America’s Path to Permanent War 77-80 (2010) (detailing Operation Mongoose, in which the Kennedy Administration engaged in “state-sponsored terrorism,” including bombings, crop burnings, and assassination attempts on Fidel Castro).

 

*Buchanan Waller is a staff member on the Journal of Law & Inequality, Vol. 41.