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Mexico’s legal battle to establish same-sex marriage may finally be coming to a head

Mexico’s legal battle to establish same-sex marriage may finally be coming to a head

  • The latest court challenge comes as the country’s top judge says states are being unconstitutional by blocking marriage equality.
President of the Supreme Court Arturo Zaldívar.

Mexico’s Supreme Court may make history if it rules states can not vote to keep their bans on marriage equality.

The Supreme Court of Justice of the Nation effectively made equal marriage legal back in 2015. It ruled then that state laws that restrict marriage only to heterosexual couples are discriminatory.

However Mexico’s Constitution doesn’t allow the court to change the state laws straight away. That’s allowed a mixed picture where same-sex couples can marry easily in some states but need to follow a long legal process to force the issue in others.

Meanwhile the new challenge comes as the President of the Supreme Court Arturo Zaldívar lost his temper with states dragging their heels over the issue.

Zaldívar said it would be ‘logical’ for states to change their law as soon as the court made a constitutional ruling.

However, he used marriage equality as an example when that’s not happened:

‘It has been repeatedly stated by this court that limiting marriage to a union between man and woman is unconstitutional, and yet we have legislatures that for political-electoral reasons do not adjust their laws to what the Court has established, that is, to what established by the Constitution.’

Mexico’s state-by-state battle for marriage equality

The court’s inability to enforce its decisions has created a long battle for marriage equality in Mexico.

Mexico has 31 states, plus Mexico City, the capital. Of these, 10 states – Baja California Sur, Campeche, Coahuila, Colima, Hidalgo, Michoacán, Morelos, Nayarit, Oaxaca and San Luis Potosí – and Mexico City have passed marriage equality legislation.

The state of Quintana Roo decided its laws already allowed same-sex marriage. Meanwhile another two states – Baja California and Chihuahua – have made administrative decisions not to enforce their same-sex marriage bans.

However, same-sex couples can apply to marry in the remaining 13 states too. To do so, they have to apply to a federal judge. It takes time and they need to pay a lawyer, but the judge can’t refuse.

Moreover, if couples do this five times, that sets a precedent. At that point, the state’s marriage equality ban ends. That has already happened in Aguascalientes, Chiapas, Jalisco, Nuevo León and Puebla.

Meanwhile, the battle for marriage equality can seem almost endless.

For example, anti-LGBT+ protestors have promised mass protests in five cities in Baja California this Sunday.

That’s because the state legislature is planning to vote on marriage equality again. So far it is one of the states which has only made an administrative decision not to enforce the ban on same-sex couples.

Complicating the picture further, Mexico is also under the jurisdiction of the Inter-American Court of Human Rights. It ruled in favor of marriage equality in 2017. And its ruling is binding on all member countries.

That ruling has already contributed to same-sex marriage becoming law in Ecuador last year and Costa Rica in May this year. However, it still hasn’t forced Mexico to act.

Why the new case could change everything

Against this backdrop, the SCJN has decided to hear a case against the Yucatan Congress.

The Collective for the Protection of All Families in Yucatan complained the state failed to approve marriage equality in 2019.

The new Supreme Court case will examine if the ‘Yucatan Congress violated the Federal Pact’ by failing to recognize equal marriage.

Campaigners hope the case will go ahead later this year or in early 2021. If they win, it won’t only change the law in Yucatan. It will also force the issue in the 21 states that haven’t yet passed marriage equality legislation.

Indeed, a ruling may even establish the Supreme Court has power over state legislatures, not just judges. That appears to be what the court’s President Zaldívar wants.

Meanwhile, Mexico would need to change the constitution in order to deal with the issue country-wide at a stroke.

Mexico’s previous President Enrique Peña Nieto attempted this in 2016. However Pope Francis again proved his homophobia by opposing the change. And a Mexican congressional committee voted against the proposal by 19 votes to 8 in November 2016, killing it off.