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U.S. Supreme Court… look southward!

27 March 2013

I hope people realize that even if the Supreme Court in the U.S. rules in favor of the two same-gender marriage cases, it does not legalize same-gender marriage in all states. In only means the U.S. has caught up to Mexico on this basic human rights issue.

The Mexican Supreme Court has already settled the issue now before the U.S. Supreme Court… marriages in one state (even if of persons of the same gender) are valid for purposes of federal law in all states… which is what United States v. Windsor is trying to settle.  IN the U.S., the issue is taxation (Windsor was a legally married to another woman in Canada.  Although residents of New YOrk, where same-gender marriages were subsequently recognized as valid in state law,  Windsor had to pay federal estate taxes to the federal government that — were she recognized as the surviving spouse — she would not owe).  In Mexico, it was  national health care insurance.  IMSS, our social security/national health care system assumed that any couple with a marriage license was entitled to be enrolled at the family rate, but just asked the Supreme Court to validate the regulatory ruling.  AND… in a pre-emptive strike against anything as ridiculous as the U.S. “Defense of Marriage Act” (which is what U.S. v Windsor seeks to overturn in part), the Supremes ruled against several states that din’t want to recognize same-gender marriages in other jurisdiction, confirming that one jurisdiction’s marriage is valid everywhere in the Republic.

As in the United States, marriage law is state law.  he Federal District and the State of Quintana Roo explicitly allow for same-gender marriage, which are recognized throughout the Republic, and by most foreign jurisdictions that recognize the validity of same-gender marriages (as Mexico does those performed in foreign jurisdictions).  One state (Coahuila) allows for same-gender “civil unions” (which seem to be accepted at the Federal level as equal to “uniones libres”, informal marriages, with most federal rights recognized).

For now, as in the United States, “one man-one woman” marriage laws are on the books in several states, but unlike the United States, the Mexican Constitution specifically grants equal rights before the law regardless of gender or sexual preference.  State laws have been challenged in two states (Oaxaca and Colima)where there have been challenges to state laws that specify marriage can only be between a man and a woman, with the federal courts issuing  injunctions (amparos) allowing the same-gender couples to marry.

cancunThe Oaxaca and Colima cases only dealt with individuals, and were different enough that the court could not rule broadly on all state laws regarding marriage.  The Oaxacan legislature had tried to outfox the Supreme Court by defining marriage in terms of producing children, but the Constitution also include4s the rights of families to limit the number of children they produce (down to zero, if they so decide), making the Oaxaca marriage law invalid for reasons other than the equal protection clause regarding sexual preference.  In Colima, the marriage law did not actually specify that marriage was only between people of opposite genders, but state officials presumed it did.  Morelos, Chiapas, Sonora and Yucatan also appear to not disallow same-gender unions, but the wording in the State Code uses pronouns that presume opposite gender couples.   Challenges from those states would likely have the same results as the case from Colima.

In another difference with the United States, the Mexican Supreme Court can solicit cases… and in the definition of marriage has been looking for challenges to the states with “one man-one woman” laws (mostly written after the Federal District changed its own civil code to be non-gender specific).  The Superemes  will more than likely find cases and rule same-gender marriages are perfectly legal everywhere … keeping Mexico still a step ahead of the U.S…. at least in theory.

And, if the legislature here in Sinaloa could get their act together, even if the U.S. Supreme Court rules the right way,  we could boost our tourism industry 🙂

One Comment leave one →
  1. 29 December 2015 9:15 pm

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