Wednesday, December 5, 2012

Mexico's Supreme Court takes another step towards nationwide recognition of gay marriage

Dec. 7 - U.S. Supreme Court agrees to consider two cases which present gay marriage issues

June 26 - U.S. Supreme Court rules on gay marriage

Guadalajara -
In January, Mexico's Supreme Judicial Court ruled that each of the country's 32 separate jurisdictions could decide for itself whether to permit gay marriage (Mexico's highest court upholds right of same-sex couples to marry, but only in some states). The Federal District had already done so in 2009, but legislatures in some states challenged its authority in the matter. The judges rejected that challenge, ruling that gay marriage is a local issue to be entrusted to state, not federal, representatives.

In May same sex unions became lawful in Quintana Roo on Mexico's Caribbean coast (Gay marriages recognized in Quintana Roo). Cancún and other Riviera Maya locations which depend so heavily on the tourist trade have expressed interest in setting up a boutique industry dedicated to gay weddings and honeymoons (Can Quintana Roo state save itself from Los Zetas by promoting gay marriage?).

Today the Supreme Court took a further step towards the nationwide legal recognition of same-sex unions, irrespective of whether it has been formally approved by local legislators.

The case arose in Oaxaca, where three-same sex couples - two unions of females and one of men - sued state officials for refusing to register their marriages. The court granted a petition in amparo, and ordered local officials to recognize the weddings. The judges rejected as unconstitutional a provision of the Oaxaca civil code which had defined marriage as "the union of persons of opposite sex with the capacity for and purpose of procreation." In so doing, however, the court appears to have abandoned its own previous approach to the controversial issue, replacing local option with federal oversight. The amparo decree is the functional equivalent of a writ of mandamus in the American legal system - an order directing a lower government official to comply with or discharge a non-discretionary obligation or duty.

Today's ruling does not automatically legalize gay marriage throughout the nation. But as similar cases are presented to the Supreme Court - a virtual inevitability - that is very likely to occur.

During last spring's political campaign, newly elected president Enrique Peña Nieto said he favored the state by state approach to gay marriage (Mexican presidential candidates address thorny issues of abortion, same-sex unions). But in view of today's constitutionally-based decision neither Peña Nieto nor Mexico's congress will have much say in the matter. It's a topic which is sure to evoke a strong response by the country's powerful and yet influential Roman Catholic Church.

July 29, 2013 - The legislature of the Pacific coast state of Colima approved gay unions as "conjugal relationships entitled to full legal protection" today, while rejecting same sex marriage. PRI and PAN delegates voted in support of the measure, which two leftist PRD delegates said was discriminatory. The constitutional amendment becomes effective Aug. 3, but a legal showdown cannot be ruled out. Gay activists want their unions called marriage, as federal courts have ordered other states to do.

Gay marriage litigation in the United States
Dec. 7 - The United States Supreme Court agreed today to consider two cases which present gay marriage issues. The Court granted writs of certiorari in both matters, and will likely hear arguments next spring. A decision could be nine months to a year away. Here's a brief summary:

One of the cases deals with California Proposition 8, approved by voters in November 2008. That citizen initiative overturned a California Supreme Court decision earlier the same year which found that same-sex couples have a constitutional right to marry. Gay marriage proponents then sued the state in federal court, and demanded that Proposition 8 be declared null and void. In August 2010 a district court judge agreed with the plaintiffs and struck down the Proposition. In February 2012 his decision was affirmed by the U.S. Court of Appeals for the Ninth Circuit in San Francisco. Both rulings held that the state's popular and frequently employed proposition procedures could never be used to take away fundamental rights after the fact, once a court has found that those rights are guaranteed by the state's constitution. The U.S. Supreme Court today agreed to consider the Proposition 8 litigation, in a case called Hollingsworth v. Perry.

A separate case tests the constitutionality of the federal Defense of Marriage Act (DOMA), 110 Stat. 2419, which was passed by Congress in 1996. The Act defined marriage as "a legal union between one man and one woman as husband and wife." In 2007 Edith Windsor and Thea Spyer, residents of New York, got married in Toronto, a union which was recognized by their home state. When Spyer died in 2009 Windsor had to pay more than $363,000 in federal estate taxes on her inheritance. If federal law had recognized their marriage she would have had no tax obligation. Windsor sued the United States for a refund, seeking a determination that DOMA violated the equal protection of the law guarantees of the Fifth Amendment to the constitution. Today the Supreme Court decided to review those decisions in the case of United States v. Windsor.

An order granting certiorari does not necessarily mean that the U.S. Supreme Court will decide the ultimate issue: whether there is an absolute legal right to same-sex marriage in the United States. It merely means the Court is disposed to begin looking into the matter. Both cases are honeycombed with technical and procedural issues, any one of which the Court could rely upon to avoid, for now, a ruling on the merits. But gay marriage activists and supporters are hopeful that their day is at hand.

Mar. 1 - The United States Supreme Court will hear arguments in these cases on March 26 and 27. Yesterday the Obama administration filed an amicus curiae ("friend of the court") brief, flatly asserting that the U.S. constitution's Equal Protection Clause overrides any state law which would bar same sex marriage. It was the strongest possible support for gay unions the administration could deliver.

Apr. 30, 2013 - Yucatán federal court orders recognition of gay marriage
Feb. 2, 2013 - Gay alliance charges Yucatán legislature shelved its petition for same sex marriages

Feb. 2 - French National Assembly deputies approve gay marriage bill

Feb. 4 - Vatican City. In an announcement which will surprise some, the Roman Catholic Pontifical Council for the Family suggested today that is has no opposition to legislation recognizing same-sex unions, together with the civil rights which accompany them. But the Council emphasized that such unions "are not to be confused with marriage, which can only exist between a man and woman." That comment is guaranteed to ignite a spark of debate in nations where the issue is under legal analysis.
Feb. 6 - Ooops . . . Today the Council says that its words were "misunderstood and misreported." The Church says it's still strongly against gay . . . marriage . . . or unions . . . or whatever you call it.

Jan. 13, 2013 - French march against gay marriage
Dec. 21, 2012 - Rural France remains opposed to gay marriage

U.S. court rules against gay deportee, finding evidence of "fundamental changes in the treatment of gays in Mexico"
Gay activists protest outside PAN headquarters in D.F.
Mexican courts show greater deference to international law, human rights than their U.S. counterparts
Mexican Supreme Court strips military courts of criminal jurisdiction in offenses against civilians

1 comment:

  1. Hooray for progress! I live in WA State where gay marriage became legal this morning at 12:01 a.m. 279 marriage licenses were issued between 12:01 and 6 a.m. That's 558 happy people. I hope the same thing happens all over the Mexican republic.