Monday, January 23, 2012

Mexico's highest court upholds right of same-sex couples to marry, but only in some states

U.S. hasn't resolved the issue yet, due to far more complex legal questions

*Updates below*
Mexico City -- The issue has not yet reached the United States Supreme Court, but it's already been resolved by the Supreme Judicial Court of Mexico(SJCM). In a 7-4 decision today, the ministers, as they're called here, upheld a state law authorizing gay marriage which was passed in Mexico's Federal District in late 2009. Seven hundred same-sex couples legally formalized their unions in the District the following year.

Courts in two Mexican states, Jalisco (the capital of which is Guadalajara) and Baja California had raised constitutional challenges to the Federal District's recognition of same-sex marriage. But today a majority of the SJCM dismissed those challenges.

Under Mexican law, each of the 32 states may decide whether to legalize or prohibit gay marriage within its borders, much like in the United States. But in the U.S. a considerably more complicated legal issue is presented, and it's yet to be resolved. The federal constitution of the United States contains a unique provision called the Full Faith and Credit Clause (FFCC), which provides that each of the 50 states must respect the "public acts, records, and judicial proceedings of every other state." A difficult question arises if, for instance, Iowa allows same-sex marriage, but nearby Kansas does not. Is Kansas thus obligated under the FFCC to recognize the marriage of a gay Iowa couple who later move to Kansas? The issue is far from theoretical, and has myriad practical consequences for the parties to the union. Property ownership, health and life insurance entitlements, medical care and end-of-life decision-making, employment benefits, tax obligations and rights of inheritance under state law are but a few of the critical legal questions which are heavily dependent upon one's marital status.

Although a handful of U.S. states have legalized gay marriage (usually by judicial decision rather than by legislative enactment), dozens of others have passed laws and constitutional amendments which define marriage as consisting solely of opposite-sex couples. Most of those laws contain language explicitly prohibiting the state from in any way recognizing same-sex marriages performed in other states or countries (e.g., Mexico). Eventually the exact issue decided today in Mexico will find it's way to the U.S. Supreme Court, but in the meantime, it's a safe presumption that a Mexican-issued same-sex marriage certificate would have no legal force or effect in most of the United States.

Finally, it's important to note what the Mexican Supreme Court did not say today. The court did not declare that Mexicans have a constitutional right to marry persons of the same sex. It merely said that each of the 32 states may decide the matter for itself, and no one of them may tell another state what to do within its own borders. That's a clear example of classic federalism at work. But the issue will be much more difficult to resolve in the United States, where all sorts of core constitutional protections guarantee citizens basic civil rights which no state, or even the federal government, may infringe. Less than a half century ago, for example, it was illegal for a black person to marry a white person in some states, and violations carried jail time. A 1967 U.S. Supreme Court case, Loving v. Virgina, invalidated all such laws, and is being heavily relied upon by gay marriage activists involved in litigation. But in Mexico it's doubtful that an inherent right to same-sex marriage will be recognized anytime soon, if for no other reason than that the Catholic Church remains a powerful voice of moral authority in this conservative and tradition-bound society.

Footnote: As I reported in December, several same-sex weddings were performed in neighboring Quintana Roo (Cancún) in 2011, but it was unclear whether they would be recognized by authorities there, due to lingering ambiguities in state law. Some of the couples threatened to carry their cases to Mexico's Supreme Court. But after today's SJCM decision, that appears to be unnecessary and less likely.

July 6 - Yucatecans not ready for gay marriage, says chief judge
June 26 - The U.S. Supreme Court on gay marriage, in a nutshell
Apr. 30 - Yucatán federal court orders recognition of gay marriage
Mar. 27 - Same sex marriage arrives at the U.S., Mexican Supreme Courts
Mar. 6 - Mexican Supreme Court: anti-gay comments are hate speech, not free speech

Dec. 5 - Mexico's Supreme Court takes another step towards nationwide recognition of gay marriage
Nov. 13 - Gay marriage on the table of Yucatán state congress
Oct. 4 - U.S. court finds evidence of "fundamental changes in the treatment of gays in Mexico"
May 4 - Gay marriages recognized in Quintana Roo

Dec. 3 - Gay marriage in Quintana Roo
Sept. 28 - Mexico's Supreme Court fails to overturn state anti-abortion laws

May 9 - Obama says he favors legalization of same-sex marriage

1 comment:

  1. It is fabulous that same-sex marriage is recognized in DF. Unfortunately, you need to reside in DF in order to get married there, if you are Mexican. Perhaps the only gay Mexicans live in DF?
    This rule limits access to gay marriage, which is federally recognized if performed in DF, to those living in DF and does not allow the same protections to those wishing to be married in DF, from other states.
    After such a ground breaking decision, there should be provisions made for same-sex couples wishing to marry and receive full benefits from civil ceremonies in DF, who live in other states.