Same issue, but very different technical questions confront American and Mexican judges
*Updated June 26 - U.S. Supreme Court on gay marriage, in a nutshell*
Guadalajara -
The United States Supreme Court heard arguments yesterday and today on gay marriage issues. A summary of the legal questions in the two cases under consideration north of the border can be found in this MGR article: Mexico's Supreme Court takes another step towards nationwide recognition of gay marriage.
Although both countries by chance are grappling with the controversial subject at the same time in history, the issues are decidedly different. American constitutional law and history varies dramatically from Mexico's. The United States is a common law nation, which means it follows the legal traditions and reasoning processes employed in British Commonwealth courts for hundreds of years. Mexico's legal system was inherited from Spain and thus bears all the hallmarks of continental (European) law, which developed along very different avenues while Anglo-Saxon notions of justice were being worked out on the other side of the English Channel. It's logical that the highest tribunals of the two nations would see contemporary social issues in a rather different light.
For the most part, Mexico's Supreme Judicial Court has already spoken on same sex marriage. In January 2012 it declared that each of the country's 32 states may decide for itself whether to legalize gay unions. The Federal District had already done so, and its legislation survived a vigorous challenge by several other states in this very Catholic country. Mexico's highest court upholds right of same-sex couples to marry in some states.
In May 2012, the government of Quintana Roo state on Mexico's Caribbean coast announced that it would allow same sex couples to wed. Gay marriages recognized in Quintana Roo. There is mounting pressure on neighboring Yucatán to do the same, and gay activists there have hinted that if the state legislature doesn't act soon, they may take their case to the Supreme Court. Gay alliance charges that Yucatán has shelved its petition for same sex marriages.
In December, by coincidence just two days before the U.S. Supreme Court agreed to take up same sex unions, Mexico's Supreme Court ordered a marriage registrar in the state of Oaxaca to record the wedding of a gay couple. The couple had sued the registrar, contending that they had a fundamental human right to marry, after state officials refused to recognize the union. The case marked a dramatic shift in this country from state option on the recognition of gay marriage to the emerging legal notion that same sex unions are a matter of fundamental right which no jurisdiction may deny. It's likely that the Supreme Judicial Court will eventually so declare, possibly by year's end. In the Oaxaca case, it should be noted, the Court confronted a state law which declared that a primary purpose of marriage was procreation - a proposition which the judicial ministers rejected.
In contrast, the U.S. Supreme Court is unlikely to find that the American constitution guarantees the right to marry a person of the same sex, although advocates have pitched that very argument to the justices. They're relying heavily upon a case called Loving v. Viginia (388 U.S. 1), a 1967 ruling which struck down so called anti-miscegenation statutes - laws which prohibited, under criminal penalty, the marriage of persons of different colors, races or ethnic heritage. Although that case contains not the slightest reference to same sex unions, and there is no reason to believe that the Court in 1967 would have ever imagined its decision would some day be used to advance an argument for gay marriage, attorneys for gay couples are doing just that. And they're in good company, because Mexico's Supreme Court has itself referred to Loving in some of its debates and rulings on same sex marriage.
After this week's arguments in Washington many constitutional experts seem to believe that the U.S. Supreme Court is most likely, for now, to defer to the 50 states on the question of recognition of gay marriage. Nine states have already made it lawful, 40 have flatly prohibited it, and one - New Mexico - has no law at all on the subject. But even if the Supreme Court goes down the road of state option, the legal issues are far from resolved. A provision of the U.S. Constitution known as the Full Faith and Credit Clause requires every state to recognize and enforce contracts and legal arrangements entered into in any other state. If a same sex couple lawfully wed in New York moves to Missouri, where gay marriage is not permitted, a difficult legal question arises as to whether state and local officials would be required to treat that couple as married under Missouri law.
That question is not just theoretical, and many special legal rights and benefits hang in the balance. In a landmark 2002 decision foreshadowing the complexity of the problem, the Kansas Supreme Court ruled that "A post-operative male-to-female transsexual is not a woman within the meaning of [Kansas law] and cannot validly marry another man." This was true even though the transsexual had received gender reassignment surgery years earlier, and had been granted a new birth certificate in Wisconsin indicating that her sex was female. In the Matter of the Estate of Gardiner, 273 Kan. 191, 42 P.3d 120 (2002). The same type of issues could easily arise in the gay marriage context.
Finally, the U.S. Supreme Court must deal with a 1996 federal law known as the Defense of Marriage Act (DOMA). Some 80 senators voted in favor of the Act, and president Bill Clinton signed it into law (although he now says he believes DOMA is unconstitutional). The statute defines marriage as the union of a man and a woman, and declares that the federal government will not recognize competing unions. Since over 1,100 federal laws confer benefits or privileges (tax and otherwise) to married persons, DOMA is an enormous burden on same sex couples. Independent of what the 50 states do with gay marriage, the Supreme Court will have to decide whether to strike down DOMA or leave it intact. Many expect a 5-4 vote on that issue. The question is, which side will be in the majority?
The Supreme Court's current term ends in June. Decisions in the litigation are expected by then.
June 26, 2013 - The U.S. Supreme Court on gay marriage, in a nutshell
Apr. 30, 2013 - Yucatán federal court orders recognition of gay marriage
Mar. 6, 2013 - Mexican Supreme Court: anti-gay comments are hate speech, not free speech
Feb. 26, 2013 - Sexual expression in Mexico can carry risks - some petty, some very permanent
Feb. 13, 2013 - Mexico moves towards greater recognition of legal rights
Mar. 12, 2012 - Gay activists protest outside PAN headquarters in D.F.
Dec. 3, 2011 - Can Quintana Roo state save itself from Los Zetas by promoting gay marriage?
Sept. 28, 2011 - Mexico's Supreme Judicial Court fails to strike down state anti-abortion laws
© MGRR 2013. All rights reserved. This article may be cited or briefly quoted with proper attribution or a hyperlink, but not reproduced without permission.
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