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Same Sex Marriage… (almost) legal

6 December 2012

No shouting… it’s not the Mexican way.

Having already ruled that same sex marriages from the Federal District are valid marriages throughout the country… giving those same gender couples married in the Federal District the same rights (as in enrollment of spouses in the National Health Care programs and inheritance) was something of a no-brainer for the Supreme Court. Marriage, when you come down to it, is just a contractual agreement (and contracts in one jurisdiction arevalid everywhere in the Republic. Once the court had ruled that the Federal District Assembly had the power to legislate changes in its own laws (again a no-brainer) that was that.

HOWEVER, there is a catch. To be married in the Federal District, one must be a resident of the Federal District. Which means only about 12 percent of Mexicans are residents of a jurisdiction where same gender marriages are legal.

As you’d expect there was a backlash in some states (I wonder sometime if state legislators here don’t just cut and paste the stupider laws from states north of the border). More than a few states — like the majority of states in the other north american United States, passed legislation defining marriage as a “union of one man and one woman” And — as also so often happens in the U.S. — there are lawsuits seeking to overturn those restrictions.

The difference here is that the Mexican Constitution specifies that equality before the law extends to people of both genders, and without regard to sexual preference. So, there’s very little legal ground to uphold those “one man-one woman” regulations.

On Wednesday, the first Chamber of the Supreme Court unanimously ruled on three separate challenges to Article 143 of the State of Oaxaca’s Civil Code which defines marriage as between a man and a woman “to “perpetuate the species and to provide mutual assistance in life”. Finding the regulation unconstitutional, the three Oaxanan couples were granted an amparo (court order) that will permit them to marry in their state.

For right now, the ruling only the six individuals in Oaxaca, but other same-gender couples in Oaxaca will be able to use these rulings as precedent in applying for court orders allowing them to marry. As for couples in other states, Minister Jose Ramon Cossio Diaz explained that more challenges to “one man-one woman” state laws, which might have other rationales than “perpetuating the species” (or no rationale at all) coming before the First Chamber are needed before the court can issue a definitive ruling that would apply nationwide.

There’s another difference with the way things are done here and there. Here, the Supremes want to be activist judges, and invite citizens to sue their states.

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