Courtship and (same-sex)marriage

Among the small cadre of English-language Mexican news commentators, most of us stick to the executive branch. Patrick Corcoran and David Agren aside, very few pay any attention to what the legislature is up to, and no one, outside myself, it seems to the judiciary. The same holds true — a lot about the executive, some on the legislature and next to nothing on the judiciary —  outside of criminal cases — for Mexican writers.  Anyone wanting to pick up the ball and run with it isn’t facing much competition.  Living out in provincia, not a lawyer and not a Mexican lawyer, I’m not exactly difficult to surpass for those who think there’s some kind of competitive ranking in the MexInfo biz.

That said,  while maybe judicial deliberation just don’t have the drama of executive action or legislative manoevering, and the  Mexican Supreme Court (SCJN:  Supreme Corte de Justicia de la Nacíon) has usually been dismissed as an paper tiger in the Mexican political sphere.  Part of that is just the nature of Supreme Courts, being designed to resolve controversies, not to raise them.  However,  its decisions can have a  long-reaching, dramatic impact on the nation and its culture that are at least as important as some specific action by some president (likely to be reversed by the next president) or some legislative initiative (which will be compromised into something very different).

The Federal District’s same-gender marriage law goes into effect on 5 March.  It isn’t, in some ways, so much a  profound cultural shift as a recognition that the assumptions of a rural, traditionalist Mexico is no longer the “real Mexico”, if it ever was.  But, the marriage bill is controversial.  Five state governors, all from PAN, as well as the Federal Attorney General, have brought before the SCJN a complaint that same-gender marriage is unconsitutional, based on the probably mistaken assumption that Article 30, Section B-II of the Constitution assumes a “family” means one with two parents, both of different genders.

The way Mexican law works, the aggrieved parties (the Attorney General on behalf of the executive branch and the five states) are claiming the Federal District law infringes on THEIR constitutional rights and is seeking an injunction from the court to stop the harm.  The court is obliged to consider the controversy… or, rather, whether there is even a basis for a claim.

In an ordinary criminal or civil case, an investigative magistrate receives a complaint, weights the evidence and — if there is evidence of a crime or a tort — presents his or her findings to the judge, who then rules on the law or issues an amparo (injunction) while reviewing the evidence.  In a constitutional case, the SJCN acts as its own investigative magistrate.  Or rather, appoints one of their own as the investigator.

The Ministers of the court, who serve 15 year terms, are — while like in the United States selected as much for their ideology and presumed political biases — unlike in the United States, the Ministers are also chosen as representatives of a legal specialty:  that is, there will be  specialists in various fields of law — criminal law, civil law, family law, labor law, etc.  The Ministers are divided into two “salas”, one looking at criminal and civil law, the other into administrative and labor law, presided over by the Minister-President, elected by the ministers, and analogous in the U.S. Supreme Court to the Chief Justice.

Here’s where a bit of politicking comes in.  Criminal and Civil Sala Minister Olga Sánchez Cordero is considered one of the more “liberal” (in the U.S. sense of the word) members of the court, and there was some pressure on Minister-President Guillermo  Ortiz from the Federal District to assign the investigative work to her.  Sánchez has a background in both sociology and the law, which — according to some, would bias her towards the Mexico City administration’s contention that social change can come through legislation.

To counter this, the Governors and the Attorney General insisted the same-sex marriage bill was an administrative law matter.  Ortiz agreed with the Governors, and assigned the investigation to Minister Sergio Valls Hernández.

If you were trying to read the tea leaves in a U.S. court case, you’d start plowing through the judge’s record, looking at previous rulings.  Minister Valls’ judicial history is in Social Security Administrative law, but he has some record in this kind of case… one that doesn’t look promising for the governors.

In 2008, Valls investigated a complaint brought by “La jarocha”, a transsexual male to female.  The Civil Court (which registers births) in the Federal District refused to issue a new birth certificate to “La jarocha” showing her female name and her gender as female.  The court would only make an annotation on her existing birth certificate.  But Valls recommended to his colleages that — on Constitutional protections of sexual identity — “La Jarocha” be issued a new birth certifcate and her original certificate (showing her original name and gender) be surpressed.  This effectively ended a controversy — important to a few people, not just trannies, but academic to most Mexicans (as is the same gender marriage bill).

The basic principle — that civil rights, even for small minorities — trumps administrative regulations — has a wider impact.  Prison and judicial reforms, policing and voting are all largely controlled by administrative regulations too.  The court matters more than we realize.