Dos ejercicios de ponderación a propósito del matrimonio y la adopción en parejas del mismo sexo

This article is intended to tackle two related topics such as marriage betweensame-sex people and their possibility to adopt through two main arguments:recognition to their right to be different and children’s right to have a family.With this, the equality principle is intended to be left aside as the main defenseargument and to question the claim preclusion (res judicata) established by theConstitutional Court in 2001 Sentence C-814 (Constitutional Court, 2001 SentenceC-814) by means of which unconstitutionality of adoption by same-sex coupleswas decided as a search for the children’s best interest, since it was againstboth social morals and the kind of family established by partner; therefore, thissentence declared expressions such as “morals” and “a couple consisting of aman and a woman capable of proving an uninterrupted coexistence of at lestthree (3) years” as enforceable, as stated in Articles 89 and 90 of Decree No. 2737,1989 or Children’s Code (revoked by Law 1098, 2006). For this purpose, the socalled integrated proportionality test is used in order establish, from those twopractical situations, pros and cons of this consideration. The test has then twointentions: a theoretical one intended to analyze consideration and a practicalone: its operation in our complex social reality.