Making the Immoral Moral: Consensual Unions and Birth Status in Cuban Law and Everyday Practice, 1940–58

During a brief period of democratic renovation in Cuba in the 1930s and early 1940s, legislators included a clause in the new 1940 Cuban Constitution that enabled citizens in consensual unions to ask the courts to declare their extra-legal partnership equivalent to a legal marriage. This clause, unprecedented in Latin America at the time, gave the same rights and benefits that legally married citizens enjoyed to citizens who previously could not have claimed them because they were considered immoral and not worthy of legal protection. The resulting legal process, called equiparación de matrimonio civil, held serious financial and social consequences not only for the persons engaged in the consensual union in question but also for their children of non-legitimate birth status.
I explore the Cuban Constituent Assembly debates about consensual unions and equiparación, and the related issue of categorization by birth status, and contrast those debates with ordinary citizens’ claims to their new rights in Cuban judicial courts. Some Assembly members considered the writing of the new constitution an opportunity to erase from Cuban legal structures existing privileges and protections based upon outdated notions of sexual propriety and race-based hierarchies. Other legislators vehemently objected, arguing that issues of the “family” did not belong in a constitution. After the ratification of the new constitution, some ordinary Cubans filed for equiparación to claim the financial and social rights and benefits they felt they deserved. To do so, they had to prove that their consensual unions were models of sexual propriety. This paper links the history of the family, law, and state formation to broader narratives of historical change and the production and reproduction of social hierarchies based upon race, class, and gender in modern Latin America.