Making sense of the Mexico decision

Timothy Kincaid

December 6th, 2012

Unlike the United States’ judiciary procedures, in Mexico judicial decisions have more of a cumulative or consensus impact. While the exact details are still murky (to me) it seems that court decisions apply only to the case at hand. However, if five cases (amparos) of a similar nature have five identical conclusions (without any differing conclusions) then this becomes the law.

In the Oaxaca decision, there were three cases which reached identical conclusion. Which means that if two more cases are pursued and the same conclusion is reached (as is likely), then all state laws excluding same-sex marriages are invalidated.

And, also unlike the US court decisions, this process can be quite a swift one; the cases decided yesterday were filed in August 2011.

But it is also possible that the three cases may prove, in practice, to be sufficient. As the intention of the court is pretty clear (unanimous decisions can give that impression), local officials may wish to avoid the hassle of upholding a law that they know has no high-court support and thus will simply issue marriage licenses.

And states may wish to avoid the hassle and cost of fighting a losing battle and will change their state laws to match what is clearly the new national standard. In fact, as I write this Oaxaca’s legislature is in the process of changing their laws.

Also interesting is that this was not the result of gay-rights groups making a strategic decision based on timing and friendly lower courts and bringing their best and most experienced legal team. These suits were brought by a law student, Alex Alí Méndez Díaz, who bucked the advice of the established LGBT groups and found in the Mexico City ruling language that encouraged him to pursue the cases.

However, the greatest boost to the cases probably came from outside Mexico. (Salon)

Méndez got an unexpected boost on Feb. 24, 2012, while the cases were in process: a landmark ruling from the Inter-American Court that the American Convention on Human Rights “prohibits … any rule, act, or discriminatory practice based on sexual orientation.” It came in a case brought by a Chilean lesbian who was denied custody of her children because of her sexual orientation, Karen Atala Riffo y Niñas v. Chile.

Mexico gives weight to international court rulings.

All of this is to say that Mexico has not become the twelfth country to offer nation-wide marriage equality, but it certainly has taken a large step in that direction. As I see it (though with this issue you can always be surprised) the other major likely contenders for that position are Colombia, Uruguay, New Zealand, and the various UK countries.

UPDATE: Michael Levers, writing at the Washington Blade, has an article that helps explain the case. Meanwhile, additional couples are pursuing marriage in Toluca, in an effort that will set the ball rolling for additional amparos.

F Young

December 6th, 2012

The link to the Michael Levers article in the Washington Blade is incorrect. This is the correct link:

http://www.washingtonblade.com/2012/12/06/mexican-supreme-court-rules-against-same-sex-marriage-ban/

TampaZeke

December 7th, 2012

I would add France to your list. In fact I would imagine that France will be the first to cross the finish line.

Timothy Kincaid

December 7th, 2012

Yes. France. You’re right, they are probably next.

Timothy Kincaid

December 7th, 2012

Thanks, F Young. Link fixed.

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