Same sex marriage for all Mexico: two down, one to go
With the Supreme Court having ruled in December that the federal constitution’s guarantee of equality before the law regardless of “preference” overrode the State of Oaxaca’s contention that marriage could only be between persons of opposite gender, it was predicted that the fight to legalize same gender marriage would be slow but painless.
Slightly different than the situation in the United States, where a case has to work its way slowly through appellate courts (and then may be turned down for review by the Supreme Court, or upheld, but only within the boundaries of the states which the Appellate court oversees… or even only in the instance from which the case arose), the Mexican Supreme Court can make a binding ruling on constitutional law after ruling the same way in three substantially similar cases. AND… the Supremes can solicit such cases from state courts when a decision will resolve a conflict between the federal constitution and the differing laws in the 31 states and the federal district.
After the Federal District removed the restrictions on same-gender marriage, several states passed “one man-one woman” marriage laws, which conflicted with Article 1 guaranteeing equality before the law, regardless of gender, “preference” or… “any factor that undermines human dignity and has the effect of nullifying or impairing the rights and freedoms of individuals”, and several parts of Article 3 (which talks about the right to cultural diversity and family integrity) and Article 4: “El varón y la mujer son iguales ante la ley. Esta protegerá la organización y el desarrollo de la familia.”
That last point — “Men and women are equal under the law. This protects the organization and development of the family” — was used to argue that the organization of a family (i.e. marriage) could only be between men AND women … but the court had ruled in initial challenges to the Federal District’s same-gender marriage bill that because the constitution gave both genders equal status… and that it equality of gender (not differences of gender) that protects the family.
So… after upholding the right of the Federal District to not discriminate in issuing marriage licenses (and later upholding the validity of these marriages throughout the Republic), and only one of the states having managed to simply pass a same-sex marriage bill on its own (Quintana Roo), the Supreme Court solicited challenges to state laws.
To no surprise, the first case arose in Oaxaca, which had passed a “one man-one woman” marriage bill under its previous PRI administration, Oaxaca has a sizable indigenous community, some of which traditionally recognizes a third gender (biological males who live as females) which made the state code difficult to enforce given that indigenous uses and customs are constitutionally protected. However, the case that went before the Court was that of two women seeking a marriage license. The court, in this first case, granted an injunction that allowed that particular couple to marry, but until there is a final ruling that covers the entire country, Oaxacans of the same gender can get a license — they need to get a federal court injunction to do so.
Last week, a second case, this one from Colima (where a bill to legalize same gender marriages had been introduced in the legislature, but had not yet made it to the floor) was also decided in favor of the couple seeking a license.
The court is waiting for a third, and final case, that will allow it to make a ruling covering the entire nation. At this point, cases from Chihuahua, Nuevo Leon, Sinaloa and Yucatán, are all being readied for court challenges. Which state will have the dubious honor of having its marriage laws invalidated is anyone’s guess, but one thing is certain: Mexico will join the growing list of nations that have recognized the legitimacy of same-gender relationships… and, more importantly… the small list of nations where such changes have occurred with only a minimum of opposition.
(Proceso via Anodis)