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to Section One | to Arts & Entertainment
posted Friday, February 22, 2013 - Volume 41 Issue 8
Mexican Supreme Court rules for marriage equality
Section One
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Mexican Supreme Court rules for marriage equality

by Mike Andrew - SGN Staff Writer

Mexico's Supreme Court issued a sweeping ruling on February 18 that said denying same-sex couples the right to marry is unconstitutional.

The case involved three same-sex couples who sued the state of Oaxaca to recognize their marriages, which had been legally performed in Mexico City - where same-sex marriages have been legal since March 2010.

The Mexican Supreme Court announced on December 5 of last year that it would order Oaxaca to recognize the couples' marriages. This followed a ruling in August 2010 that same-sex marriages performed in Mexico City must be recognized throughout the country.

Observers speculated that the court delayed issuing its formal ruling in the Oaxaca case because the justices disagreed about how broadly the decision should be written. As it was, the court's affirmation of Gay rights could not have been stronger.

BROWN, LOVING INVOKED
Writing for a unanimous court, Arturo Zaldívar Lelo de Larrea referred to two key U.S. Supreme Court decisions: Loving v. Virginia (1967) and Brown v. Board of Education (1954).

In Loving v. Virginia, the U.S. Supreme Court struck down laws against interracial marriage in the United States.

'The historical disadvantages that homosexuals have suffered have been well recognized and documented: public harassment, verbal abuse, discrimination in their employment and in access to certain services, in addition to their exclusion to some aspects of public life,' Zaldívar wrote in his opinion.

'In this sense ... when they are denied access to marriage it creates an analogy with the discrimination that interracial couples suffered in another era. In the celebrated case Loving v. Virginia, the United States Supreme Court argued that 'restricting marriage rights as belonging to one race or another is incompatible with the equal protection clause' under the U.S. constitution. In connection with this analogy, it can be said that the normative power of marriage is worth little if it does not grant the possibility to marry the person one chooses.'

CIVIL UNIONS INSUFFICIENT
Zaldívar also wrote that it would also be contrary to the principles of the Brown school desegregation case to restrict same-sex couples to civil unions or domestic partnerships while barring them from marriage.

'It can be said that the [other] models for recognition of same-sex couples, even if the only difference with marriage be the name given to both types of institutions, are inherently discriminatory because the constitute a regime of 'separate but equal,' he wrote.

'Like racial segregation, founded on the unacceptable idea of white supremacy, the exclusion of homosexual couples from marriage also is based on prejudice that historically has existed against homosexuals. Their exclusion from the institution of marriage perpetuates the notion that same-sex couples are less worthy of recognition than heterosexuals, offending their dignity as people.'

PRECEDENT ESTABLISHED
The court also established an important precedent by citing a ruling handed down in 2012 by the Inter-American Court of Human Rights, Karen Atala Riffo y Niñas v. Chile.

Karen Atala was a Chilean mother who was denied custody of her children during divorce proceedings when her ex-husband revealed she is a Lesbian.

The Inter-American Court said the Chilean courts violated Atala's human rights and said for the first time that Gays and Lesbians are protected from discrimination under international law. The American Convention on Human Rights 'prohibits ... any rule, act, or discriminatory practice based on sexual orientation,' the court said.

Most Latin American countries recognize the jurisdiction of the Inter-American Court, which is the legal arm of the Organization of American States. The United States and Canada do not recognize the court's jurisdiction, however.

The Mexican marriage case was the first test in any Latin American court of whether the decision in Atala can be applied to marriage rights. The court held that it could, writing that Atala requires the rejection of 'a regime of separate-but-equal marriage.'

'WE HAVE MADE HISTORY'
For the lawyer who brought the Oaxaca suit, Alex Alí Méndez Díaz, the Supreme Court ruling is a historic win.

'Without a doubt, we have made history ... in Mexico. The next step is to extend this experience to other parts of the country,' he said.

Unlike the U.S. Supreme Court, the Mexican court cannot automatically strike down state laws that violate the constitution. Instead, it must go through a process of ordering individual states to comply with constitutional protections.

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