Separate but not equal

7 June 2014

The First Chamber of the Supreme Court of Justice (Supreme Court) upheld two men wishing to marry in the state of Colima. Their previous application was denied by the Mexican state of Colima for being the same sex for which for the judges declared a true case of discrimination.

Local Colima authorities had denied the request, citing Articles 147 of the Constitution of the State of Colima and 102 of the Civil Code which they say defined marriage was only for the purpose of perpetuating the species and should be between a man and woman.

In response, the ministers of the First Board declared the interpretation unconsitutional. On the proposal of the Minister Jorge Pardo Rebolledo, the judges held that “the exclusion of marriage to same-sex couples is a true act of discrimination ” and can not be tolerated in a state such as ours.

It was also argued that the contested standards to themselves be discriminatory and violate the right to free development of personality, by limiting marriage to heterosexual couples, is insufficient an interpretation consistent, then, do it, these rules continue to exist in its writing, even being contrary to Article 1 constitutional and international obligations to Mexico as non-discrimination on grounds of sexual preference.

Less than a year ago, the State Legislature in Colima had gone to a lot of needless trouble of creating an entirely unnecessary bureaucratic procedure and coining a new legal term, enlace conjugal, even though they probably knew the “same but not the same” as marriage in a form that would only be recognized within their state would not pass constitutional muster. Although the bill was overwhelming approved, the state PRD offered to assist any couple seeking to sue the state for a “normal” marriage license. Whether the enlaces still exist, I don’t know, although they are rather redundant at this point.

I’ve lost count, but the number of similar rulings needed for the Supreme Court to overturn “one man-one woman” state laws throughout the Republic is down to one or two. As in the United States, Mexican state legislatures have been reluctant to simply change their state laws, waiting for federal courts to order them to do so. However, with the Supreme Court having already ruled that such laws are invalid, at this point it’s simply a matter of finding people with the time (and money) to file suits in the remaining states.

While marriages in a jursidiction that allows same-gender marriage is recognized in all states, getting married in a state where the law does not specify the gender of the couple, but where the contract implies male and female, bureacratic foot-dragging (mostly a matter of simply changing the wording of the contract to be gender neutral, it is still a time consuming process, often requiring a federal injunction (amparo).

Sombrero tip to Rollie Brook.