Supreme Court of Mexico Rules for Gay Marriage

BY J. LESTER FEDER

The country is on track to legalize same-sex marriage nationwide before its neighbor to the north

In a unanimous ruling Wednesday, the Supreme Court of Mexico has paved the way for same-sex couples to marry in every one of the country’s 31 states before the U.S. has federal marriage equality.

Gay marriage has been legal in the Federal District, Mexico City, since 2010, and the Supreme Court had previously ruled that those marriages must be recognized nationwide. Wednesday’s ruling struck down a law in the southern state of Oaxaca that denied same-sex couples the right to marry there.

The ruling could have repercussions beyond Mexico’s borders. The couples seeking to marry in the Oaxaca case based their claims partly on protections in the American Convention on Human Rights, which has legal force in many Latin American countries. In saying that bans on same-sex marriage are discriminatory, the court may establish a precedent that could be used by LGBT activists throughout the region.

This comes before the U.S. Supreme Court has even decided whether it will hear a gay marriage case.

This Oaxaca case, which has broad implications, 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.

Méndez met a couple named Alejandro and Guillermo while working with the Oaxacan Front for the Respect and Recognition of Sexual Diversity [Frente Oaxaqueño por el Respeto y el Reconocimiento de la Diversidad Sexual] to plan a 2011 gay rights march. (Méndez has not released the last names of his clients to protect their privacy.) They said they wanted to get married but couldn’t afford the trip to Mexico City.

Méndez took a look at the recent Supreme Court ruling upholding Mexico City’s marriage ordinance and decided they 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.”

Activists “said Oaxaca wasn’t ready for those discussions,” Méndez said of the poor and largely rural state. “So I said, ‘Fine, if the collective won’t do this as a collective, well, I’m the only lawyer [in the group]. I’ll do it.”

He ultimately 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.

Méndez got an unexpected boost on Feb. 24, 2012, while the cases were in process: a landmark ruling from the Inter-American Court that the American Convention on Human Rights “prohibits … any rule, act, or discriminatory practice based on sexual orientation.” It came in a case brought by a Chilean lesbian who was denied custody of her children because of her sexual orientation, Karen Atala Riffo y Niñas v. Chile.

This ruling from an international court — whose verdicts count as legal precedents in Mexican courts — expanded the significance of what the Mexican Supreme Court had already found when it upheld the Mexico City marriage law, said another lawyer who worked on the case, Geraldina de la Vega. In an email exchange before the ruling, de la Vega said the two precedents together would have a big impact on what the court “pronounces on the scope of family protections” under Mexican law.

Today’s ruling doesn’t mean same-sex couples will immediately be able to marry throughout Mexico, de la Vega cautioned Wednesday afternoon. There is a longer legal process for overturning statutes in Mexico than in the United States, even after the court issues a ruling like this. And the speed with which this change can happen depends on the details of the written ruling, which still has not been published.

But despite the procedural hurdles before same-sex marriage is possible in every state, Wednesday’s ruling is a huge advance, said Antonio Medina, an editor of the newspaper La Jornada’s sexuality supplement and an activist who helped lead the fight for couples’ rights in Mexico City. “It’s a big advance [and] a large step for other claims that will surely come in time,” he said in an email. “It’s a significant step, without a doubt.”

Lawyers working with activists to strike down marriage laws in other countries are already eyeing the verdict. “Today’s decision in Mexico is a victory for human dignity, equality and family,” said Hunter Carter, a New York-based lawyer representing three Chilean couples claiming the right to wed under the Inter-American Convention on Human Rights. “It will greatly reinforce arguments in the U.S., Chile, and in the Inter-American Commission on Human Rights, that equal access to marriage for committed same-sex couples is a human right.”

Salon.com