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Activist Alex Alí Méndez Díaz.
On December 5, 2012, the Supreme Court of Mexico announced a unanimous ruling striking down a ban on same-sex marriage in the southern state of Oaxaca. Two and one-half months later, on February 18, 2013, the Court issued the actual decision, which ringingly affirms the principle of equal protection under the law and cites precedents from both the Supreme Court of the United States and the Inter-American Court of Human Rights.
As we reported here on December 7, 2012, "The sweeping nature of the ruling, which effectively changes Oaxaca's civil code to state that marriage takes place 'between two people' instead of between a man and a woman, has led court observers to say that it will pave the way to marriage equality throughout the country."
The court ruled on behalf of three same-sex couples seeking to marry in the southern state of Oaxaca. In 2010, the Court decided that gay marriages performed under a Mexico City ordinance had to be recognized nationwide. With the new decision, the remaining bans on same-sex marriage in Mexican states are expected to fall.
However, the Mexican Supreme Court does not strike down state laws en masse as the United States Supreme Court does. Rather, the ruling in the current case can be used as a binding precedent to challenge the marriage laws in other states. Hence, couples in the remaining states will have to challenge state laws in order to have the right to marry. However, the issue is no longer substantive, but procedural.
J. Lester Feber, in an article at BuzzFeed, describes the ruling released on February 18, 2013 as impassioned and sweeping.
"Writing for a unanimous tribunal, Minister Arturo Zaldívar Lelo de Larrea invoked the U.S. cases Loving v. Virginia and Brown v. Board of Education to argue for marriage equality in a way that American activists would be overjoyed to see from a justice of the U.S. Supreme Court."
In his decision, Zaldívar writes (translated from its original Spanish) that "The historical disadvantages that homosexuals have suffered have been well recognized and documented: public harassment, verbal abuse, discrimination in their employment and in access to certain services, in addition to their exclusion from some aspects of public life. In this sense . . . when they are denied access to marriage it creates an analogy with the discrimination that interracial couples suffered in another era. In the celebrated case Loving v. Virginia, the United States Supreme Court argued that 'restricting marriage rights as belonging to one race or another is incompatible with the equal protection clause' under the US constitution. In connection with this analogy, it can be said that the normative power of marriage is worth little if it does grant the possibility to marry the person one chooses."
Zaldívar also notes that it would be contrary to the principles of the 1954 school desegregation case Brown v. Board of Education to restrict same-sex couples to civil unions or domestic partnerships while barring them from marriage.
"It can be said that the [other] models for recognition of same-sex couples, even if the only difference with marriage be the name given to both types of institutions, are inherently discriminatory because the constitute a regime of 'separate but equal.' Like racial segregation, founded on the unacceptable idea of white supremacy, the exclusion of homosexual couples from marriage also is based on prejudice that historically has existed against homosexuals. Their exclusion from the institution of marriage perpetuates the notion that same-sex couples are less worthy of recognition than heterosexuals, offending their dignity as people."
Feder also notes that "The court broke important ground in the ruling by invoking another precedent from international law, a ruling handed down in 2012 by the Inter-American Court of Human Rights, Karen Atala Riffo y Niños v. Chile."
Karen Atala is a Chilean mother who was denied custody of her children during divorce proceedings with her ex-husband because she is a lesbian. The Inter-American Court said the Chilean courts violated Atala's human rights and for the first time said that gays and lesbians were protected from discrimination under international law, declaring that the American Convention on Human Rights, "prohibits . . . any rule, act, or discriminatory practice based on sexual orientation."
The Mexican marriage case was the first test in any Latin American court of whether the decision in Atala's case can be applied to marriage rights. The court held that it could, writing that Atala requires the rejection of "a regime of separate-but-equal marriage."
In December, Feder, in an article at Salon, noted that the Oaxaca case "had an unlikely beginning. It was initiated by a Oaxacan law student, Alex Alí Méndez Díaz, who brought suits on behalf of a handful of couples even though other LGBT activists in his state warned that they were doomed to fail."
Feder explains that when a couple from Oaxaca told Méndez that they wanted to marry but could not afford the trip to Mexico City, he took a look at the 2010 Supreme Court ruling upholding Mexico City's marriage ordinance and decided that he could build a case at home. "The document seemed to me to be extraordinary," Méndez said in an interview . . . . The court seemed to be saying that 'family' rights in the Mexican constitution are not restricted 'only to a family of a father, a mother, and children, but also to whatever other form of family.'
The Supreme Court's unanimous decision in this case is the culmination of the recent steady progress toward equal rights in Mexico. In 2006, Mexico City, the nation's capital and largest city, adopted civil unions, which gave same-sex couples many of the rights and responsibilities of married couples, though it did not convey adoption rights.
In December 2009, Mexico City's legislature passed a bill permitting same-sex marriage. The bill, which defines marriage as "the free uniting of two people," was quickly signed into law by Mayor Marcelo Ebrard. The law permits same-sex couples to adopt children, apply for bank loans together, and be included in the insurance policies of their spouse, as well as the rights that were provided in the domestic partnership law.
The law was bitterly denounced by the Roman Catholic hierarchy and challenged as unconstitutional by Mexico's federal government, but after the nation's highest court refused to intervene to stay the law, the city began issuing marriage licenses to same-sex couples in March 2010.
In August 2010, the Supreme Court affirmed the constitutionality of same-sex marriage in Mexico City. On a 9-2 vote, the Court also ruled that the same-sex marriages performed in Mexico City must be recognized in all 31 Mexican states.
The video below from the BBC explains the ruling and includes an interview with Alex Alí Méndez Díaz.