Jalisco: let us not admit impediments

Love is not love, which alters where it alteration finds… except in the 26 states where same-sex marriages … while legal… still require one to obtain an amparo from the federal courts.  Although the Supreme Court definitively ruled that same-sex marriages are a constitutional right, and the court can (and did) order the states to change their marriage laws to meet constitutional standards, it has only limited power to force them to do so.  And, for historical reasons, “state’s rights” in constitutional matters are difficult to overcome. While the ruling is binding on all federal courts, and the Supreme Court can tell the states to change their marriage laws, it can’t force them to do so.  UNLESS… there are at least five rulings by federal courts within the state finding the law unconstitutional.

While in a few states, the legislatures have simply accepted that they need to change their marriage laws, the rest — to avoid the hassle, or to give cover to politicians scared to death to actually take a not-particularly controversial stand — are trying to shift the burden for making changes to the federal courts. Federal courts will automatically follow the Supreme Court’s ruling, and grant an “amparo” (injunction) for same-sex couples to marry.  So, in theory, a same-sex couple can marry anywhere in Mexico… provided they can invest the time, money, and energy into filing for an amparo.   Although there are any number of organizations and individuals working to bring same sex marriage cases to the federal courts, it’s a slow process.

But in Jalisco, the process has been short-circuited.  While Puerto Vallarta may be a “gay mecca” and Guadalajara might show a modernist facade, the state was the heartland of the Cristero movement and has been notoriously reactionary.  When the Federal District opened marriage to same-sex couples, Jalisco’s legislature was quick to pass a “one man-one woman” marriage law… too quick, it turns out.

Having overlooked the age at which one can marry, the state legislature had to revisit their marriage law and tweak it.  Little noticed, and uncontroversial in itself, the change did open a window of opportunity for lawyers to question the constitutionality of what was in effect a new marriage law passed after the Supreme Court’s ruling.  And for the Supreme Court to make Jalisco the sixth state (including the Federal District, which is becoming a state) to those places in Mexico that joined the 21st century.