Making Sense of the Mexico Decision, Ctd. — What is an Amparo?

Jim Burroway

December 6th, 2012

Not to contradict anything that Timothy wrote — he has explained the Mexican marriage decision far more clearly than I ever could — but I wanted to add an answer to a question that maybe some of you asked and others (like myself) didn’t know to ask: What is an Amparo?

It turns out it’s not just any kind of a court case, but a rather special one. Similar to a writ of habeus corpus, which protects an individuals physical liberty,  a recurso de amparo — amparo literall means “protection” in  Spanish — protects all other forms of liberty. (In fact, habeous corpus in Mexico is just one of five specific types of amparos, called an amparo libertad.) Amparos are a particular kind of constitutional human rights complaint challenging an action which conflicts with the Mexican Constitution and/or international human rights protocols. Amparos, as a legal device, were invented in Mexico in the early 1800s, and their use has spread, in various forms, through much of the Spanish-speaking world.

The couples in these three cases filed amparos charging that Oaxaca’s Civil Code was unconstitutional because it excludes gay couples from marriage and that the Congress of Oaxaca had failed to protect their families, a right guaranteed under the Mexican Constitution. Two of the amparos were denied at the lower court level, and one was approved. The cases were then appealed to the Supreme Court, resulting in that court’s granting of these three amparos.

As Timothy pointed out, these decisions apply only to those parties named in these amparos, in much the same way that a writ of habeus corpus applies only to the named parties in the U.S. Which, as I understand it, means that the decision so far applies only to Oaxaca. It takes five consecutive, identical amparos before the ruling becomes universally binding. Already, couples are going to the Civil Registry Office in Toluca requesting marriage licenses and are prepared to file amparos if their requests are denied. But, as Timothy also explained, many local officials may go ahead and begin issuing marriage licenses to same-sex couples based on these decisions. But if two more officials deny a marriage license and those couples file an amparo, we may get the five decisions bringing marriage equality to yet another nation.

Jim Hlavac

December 6th, 2012

Not too long ago in Mazatlan, Mexico, I wound up working with an American man married to a Mexican woman in, um, unhappiness, with three charming blond haired blue eyed daughters to confuse the issue. I found myself learning about Amparos fast. The word gets the lead out of bureaucratic butt, that’s for sure. The mere threat of seeking one gets action, that I found; and I didn’t have a clue what it really was when I first used it.

It turns out there are many types of amparos, and there are many books on the subject — and each seems to have its own peculiar form, i.e. business amparos, land amparos, work place amparos, etc. There’s even an amparo for “cases not covered under the law as written;” with its own 400 page book explaining it. Which was my friend’s case — he was a house husband, his wife required to supply support for him and the children, since he couldn’t work in the country, and she was refusing to pay “husband support,” as I put it. It was rather comical as I had to explain to many the “nueva sexualidad” — the new sexuality.

When there’s no law, or article (since Mexico is civil law you always have to refer to articles of the law first, and previous court cases not so much,) covering a situation, then the person can seek an amparo — gay marriage is very um, amparo-able, for there’s little law on it.

And what seems to be the best thing about them is that they must be accepted to be heard. As long as the right forms are used, a judge has to hold a hearing — and the loser pays the costs. They can be between any two people too, not just a person and the state — and everyone avoids them like the plague.

So if gay folks ask for amparos, they’ll get them. And then, if enough on one subject show up the legislature must conform the laws to the new decision. In a way it’s judicial legislation for what the legislature forgot to do. Yes, nice that gay folks are going to use that tool of the law.

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