DISADVANTAGED GROUPS, THE USE OF COURTS AND THEIR IMPACT: A CASE STUDY OF LEGAL MOBILIZATION IN ARGENTINA A dissertation presented by María Gracia Andía to The Law and Public Policy Program in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the field of Law and Public Policy Northeastern University Boston, Massachusetts May 2011 1 DISADVANTAGED GROUPS, THE USE OF COURTS AND THEIR IMPACT: A CASE STUDY OF LEGAL MOBILIZATION IN ARGENTINA by María Gracia Andía ABSTRACT OF DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Law and Public Policy in the Graduate School of Arts and Sciences of Northeastern University, May 2011 2 Abstract In the context of rising judicialization of politics, Argentina presents a case that is relevant and is worth our attention for the insights it provides to the phenomenon of legal mobilization. This dissertation describes and analyzes how two disadvantaged groups in this country—LGBT and indigenous—used law and courts to achieve their policy ends. I suggest some answers about what factors make the groups choose the courts, the impact of using the courts, whether social mobilization -support structure- makes any difference on the impact, and what “new” roles are thrust upon courts in the policy making process. Through an interdisciplinary appraisal and the use of empirical analysis, this dissertation fills the gap, adds to the existing literature, and sheds new light on the phenomenon of judicialization of politics. I began by surveying the literature on legal mobilization and the judicialization of politics and then examined how these two groups built their “social structures for legal mobilization” and mounted their legal campaigns for social change. Although there are some important similarities and differences between these groups, both have used the courts to advance their rights. The impact of the recent efforts of legal mobilization on behalf of LGBT individuals and indigenous peoples on the national Congress and the media turned out to be different. The case studies developed here indicate that when cases are being advanced in court by groups that enjoy considerable social mobilization, what the literature calls the “support structures for legal mobilization,” they are likely to achieve the objectives that are sought. The findings support Charles Epp’s "support structure" explanation, suggest a classification of the cases using Marc Galanter’s theory about the nature of the parties as one- shotters or repeat players, and provide a fuller understanding of the extent to which courts play a new role in Argentine politics. 3 Acknowledgements This was an unforgettable and wonderful experience, both personally and professionally. I am grateful to the ones who guided and helped me in this process, making this journey easier and more delightful. I want to thank the chair of my committee, Professor Michael Tolley, who was always available, and whose comments were precise and constantly encouraging. His help made this dissertation become as fluid, readable, and interesting as it is. Also, I would like to thank the readers of my committee, Professor Tom Koenig and Professor Rhonda Evan-Case, for their support and inputs. I want to thank the Director of the Law and Public Policy Program at Northeastern University, Professor Joan Fitzgerald, for her generous support and for giving the opportunity to teach. I am grateful to my “Intro to Law, Policy, and Society” students, for all of what I learned from them. I am also grateful to Len, Suzy, and Christina; they were very important for me at the beginning of this process. I want to thank Professor Alejandro Garro, from Columbia Law School, whose generosity was extremely important once I arrived to New York. Also, I am thankful to Professor Ellen Chapnick for her support during my period as Visiting Researcher at Columbia Law School. My time there was critical for the development of this dissertation. I am grateful to Dr. Linn Hammergren, who contributed to make my experience at World Bank in Washington D.C. extremely interesting, and gave insightful comments to the first drafts of this work. I am thankful both to Northeastern University and Columbia Law School for their financial support throughout my doctoral studies. That support allowed me to focus solely on my research during my years in Boston and New York. Moreover, I would like to thank to those who helped me financially in Mendoza to start with this project several years ago. 4 I want to thank Congressman Adrian Perez, the University of Palermo, and the Institute of Social Sciences Methods at the National Academy of Social and Moral Sciences for helping me to find time and space to continue working on my dissertation in Buenos Aires. My friends made this process enjoyable and sometimes “bearable,” motivating me and allowing me to learn from them. Corey, Kuheli, Neenah, and Gram made LPS a special place for me. Sole, Pancho, Ana, Javi, Karen, Tito, Carmen, Analia, Paula, Vicky, and Agus made Cambridge and New York my home. Gabi, Ali, Seba, and Santi were supporting me no matter what and no matter where. Marga, thank you for your time and dedication as an adorable “abuela.” The only way to efficiently work was to know that my daughter was safe, loved, and having a great time with you. Chango, you have been very important for me in the whole process. From the beginning encouraging me to embark in this PhD; then discussing topics and theories; and until the final moment being there. Thank you for your support, generosity, and confidence in me. Dad and mom, thank you for raising me with freedom, love, and sewing the seeds of curiosity into me. Thank you for always encourage my personal and professional development, and challenge myself to do my best without forgetting my roots. Thank you for educating me in an environment in which the principles of equality, fairness, love, and tolerance always ruled. Thank you for having taught me to be kind and generous, combining joy and responsibility. I truly hope that my personality reflects those values, and that I could bring them to my own family. Thank you for being so humble and unselfish, with both of you I never feel alone. Jime and Seba, you are my closest friends, my witnesses who see me at my worst and my best and love me anyway. Jime, thank you for being a marvelous “big sister.” Knowing that you were in the other side of the phone whenever I needed you, made the difference for me. Thank 5 you and Rodrigo for giving me the joy of being the “tia” of such lovely nieces. Seba, my pal, thank you for your constant support, I will treasure in my heart all what we lived those years in New York; I love you. Juan Cruz, without your love, help, encouragement, and patience this work would not have been possible. In all these years of this incredible journey together, you never stopped being my best friend and beloved adventurer partner who makes me happy. You are the one who knows me better, and knows how to bring the best out of me. Your love is my home, but also is what makes me aim higher and look for further challenges. Thank you for reading every single draft and discussing all my crazy ideas, always trying to have the best sense of humor. Thank you for being the tolerant editor who improved the quality of my work. Thank you for being a loving and great father who is always ready to act. To my daughter, Abril, who changed my life. You are the joy, fun, innocence, and love embodied in one little beautiful person who makes me want to be every day a better person. You complete me. 6 TABLE OF CONTENTS Abstract 2 Acknowledgments 4 Table of Contents 7 List of Abbreviations and Acronyms 10 Chapter 1: Introduction 13 A. Problem Statement 13 B. Background and Literature Review: United States, Latin America, and Argentina 17 1. The U.S. and the World Context 17 2. Latin America and Argentina 24 Chapter 2: Social Movements and the Law 40 A. Background and Theory 40 B. Methodology 57 Chapter 3: Law and Politics in Argentina 60 A. An Overview 60 B. The Form of Government and Political System 69 C. The Legal System 73 1. Marriage Law 77 2. Property Law 77 D. The Legal Profession 77 E. The Use of Courts by Rights-Based Advocacy Groups 80 Chapter 4: Legal Background of the LGBT and the Indigenous Peoples Movements 86 7 A. Legal Background of the LGBT Movement Strategy 86 B. Legal Background on Indigenous Rights 89 C. Governmental Institutions Relevant to the LGBT and Indigenous Movements 103 1. National Institute against Discrimination, Xenophobia, and Racism (INADI) 104 2. National Indigenous Affairs Institute (INAI) 107 Chapter 5: The Use of Courts by the LGBT Movement 113 A. Organization and Mobilization Background of LGBT People in Argentina 113 1. Argentine Homosexual Community (CHA) 114 a. History, Location, and Structure of the Organization 114 b. Funding 115 c. Members and Human Resources 115 d. Goals Achieved and Strategies Followed 115 2. LGBT Federation 119 a. History, Location, and Structure of the Organization 119 b. Funding 122 c. Members and Human Resources 122 d. Goals Achieved and Strategies Followed 122 B. Common Features of the LGBT Mobilization 124 C. The Conflicts and Differences within the Social Movement 125 D. The Strategy: “the Same Names, the Same Rights,” a Superior and Common Objective Prevailed 127 E. The LGBT Movement beyond the Courts. The Time for a Legislative Agenda: Egalitarian Marriage Reform 145 8 Chapter 6: The Use of Courts by Indigenous Peoples 152 A.