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Topics In the News
Supreme Court of Mexico Strikes Down Same-Sex Marriage Ban
Posted by: Claude J. Summers on 12/05/12
Last updated on: 12/07/12
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A Mexican couple expresses the sentiments of the Mexican glbtq community.

On December 5, 2012, the Supreme Court of Mexico issued a unanimous ruling striking down a ban on same-sex marriage in the southern state of Oaxaca. 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.

J. Lester Feder at the After Marriage blog reports that the gay rights activists who brought the case are proclaiming that the ruling "opens the door to equal marriage in the whole country."

The court ruled on behalf of three same-sex couples seeking to marry in the southern state of Oaxaca. The court ruled in 2010 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.

As Feder explains, the Mexican Supreme Court does not strike down state laws en masse as the United States Supreme Court does. But the ruling in the current case can be used as a binding precedent to challenge the marriage laws in other states.

The court's ruling that the ban on same-sex marriage is unconstitutionally discriminatory is based in part on a February ruling from the Inter-American Court of Human Rights that governments can not discriminate on the basis of sexual orientation.

Hence, the Mexican Supreme Court's ruling may have repercussions outside of Mexico, particularly in other Latin American countries that recognize the Inter-American Accord on Human Rights.

More information on the historic ruling may be found (in Spanish) here: "Histórico: El matrimonio ya no es sólo entre un hombre y una mujer".

In an article at Salon, Feder explains more about the decision and its repercussions. He also notes 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 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 in Oaxaca City last week. 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."

Despite the advice of those who said that the largely rural state was not ready for same-sex marriage, Méndez filed suit on behalf of three couples, expecting to lose them all. "Instead, he was surprised when a federal judge in Oaxaca ruled in favor of one couple, Lizeth and Montserrat. The government of Oaxaca appealed, teeing the question up for the Supreme Court."

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 August 2010, reports on the Mexican Supreme Court's decision upholding the constitutionality of Mexico City's marriage equality law.

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