Mexican Supreme Court Declares Bans on Gay Marriage Unconstitutional

Ruling Applies to Oaxaca

The Mexican Supreme Court on February 18, 2013, formally ruled that bans on same-sex marriage are “discriminatory and unconstitutional.” The court’s decision was actually made last December.

Decision Relies on Two Famous Decisions of U.S. Supreme Court

The court was unanimous in its decision that bans on same-sex marriage are “discriminatory” and “unconstitutional.” Mexico Minister Arturo Zaldivar Lelo de Larrea  invoked the two U.S. classic cases, Loving v. Virginia and Brown v. Board of Education, to argue for marriage equality.  Perhaps the U.S. Supreme Court will follow suit next month with its Supreme Court considerations of same-sex cases?

The Oaxaca ruling:

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.  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 US Constitution.  In connection with this analogy, it can be said that the normative power of marriage is worth little if it does grant the possibility to marry the person one chooses.

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 they constitute a regime of “separate but equal.” 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.

Law Different from the United States

The Mexico Supreme Court can only strike down a law after ruling the same way in five separate cases.  This particular ruling only applies to three couples who filed suit in Oaxaca.  Two more same-sex couples from the state of Oaxaca will have to file a similar suit and then the process may have to repeat in other states.  So, it may take two more for any same-sex couple in Oaxaca to be able to wed easily.  This is a procedural issue, not a legal one.

Where Same-sex marriages are Legal

Mexico City already offers same-sex marriages that are legally recognized in other states. Same-sex couples can marry in Argentina. Uruguay, Chile, Colombia, and French Guiana are considering gay marriage.

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