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See you in court!

28 January 2010

On rather specious grounds — that Art. 4° of the Mexican Constitution justifies sexual equality on the grounds that equality protects the organization and development of families — the Federal Prosecutor’s office is considering a challenge to Mexico City’s same sex marriage bill.

However, Raúl Plascencia, the Human Rights Commissioner  says this is nonsense and there is no legal basis for a challenge.  The Human Rights Commission is an unusual legal body:  as a federal court, it issues opinons and rulings… but has no way to enforce them, and has to go to other courts to do so.

Marcelo Ebrard, the Federal District’s Jefe de Gobierno, who signed the bill making same-sex marriage legal (it doesn’t take effect for a couple of weeks yet) also points out that this is the Federal Government attempting to just to limit civil rights, but to override the local legislature. A sort of “states rights” issue, and the one that brought the ill-advised challenges to the Federal District’s abortion law liberalization to a grinding halt.

In the abortion ruling, the Supremes affirmed the rights of states (and the Federal District) to control their own health and safety codes, and — as a constitutional matter — also depended on Art. 4°, which also gives families the right to practice birth control  among many other things.

Art. 4° mentions equal rights for men and women, but is sort of a grabbag of the rights the state owes the citizens. The right to access to birth control, health care, a clean environment, cultural activities and “a clean and decent home” (ok, sometimes the Mexican Constitution is a wish list… still…). Children are specifically given the right to be provided with food, health and a safe home.

Presumably, the persons included in Art. 4°  includes everyone mentioned in Art. 1° — which broadly prohibits discrimination “motivated by ethnic or national origin, gender, age, incapacity, social condition, state of health, religion, opinions, sexual preference, marital status, or any other attribute which is used to annul or depreciate the rights and liberties of the person” (my translation).

Two of the Ministers of the Court have been replaced since the abortion ruling, by presumably more conservative Ministers, which could — conceivably — lead to a ruling against the Federal District.   I think its unlikely that the Federal Prosecutor will ever bring the case, and is just attempt to override a legislative decision that doesn’t sit well with PAN (and,  create a social issue for the coming elections).  For one thing, it’s expected it will take at least a year for this to get to court, by the time  same-sex marriages will have been legally performed and — one presumes — some legal adoptions (which, going by the experiences of other countries are overwhelmingly children from one or both partners’ previous relationships, or where one partner is already the adoptive parent).

AND… should the Federal Prosecutor go ahead,  there is likely to be a rush to the Civil Registrars’ office in anticipation of a negative ruling, which can’t be undone, and sort of undercuts the value of the challenge.

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