Marriage in Mexico – update and Jalisco victory
January 26th, 2016
Marriages occurring anywhere in the country are recognized throughout. So, since December 2009 when Mexico City legislators voted for marriage equality, same-sex couples could travel to the capital and have their relationship recognized upon their return.
However, other than in six states, locally conducted same-sex marriage is illegal. But these are not laws without a solution. A couple can go to court and request an amparo (a sort of civil rights ruling) which states that the law is unconstitutional and which would allow that couple (but only that couple) to marry.
The outcome is assured; the Supreme Court has established that all such efforts result in approval of the marriage. So any same-sex couple can marry in any state – though it takes a lawyer, about $1,000, and a month to go through the legal process.
Additionally, after five identical amparos have been granted in one state, precedent is set and that state then will recognize same-sex marriages without any need for additional amparos. So for about $5,000 per state (about $125,000 total) and less than a year, marriage equality could be universal across the nation. Considering that in the US the legal battle cost tens of millions of dollars, this is a bargain and activists are implementing a plan to grind through the ampero process.
Meanwhile states are individually chugging along towards equality, some through non-amparo means. Currently Mexico has six equality states (out of 31):
Quintana Roo (Cancun) – In December 2011, local officials realized that the law did not mention the gender of those seeking marriage and that there was no restriction on same-sex couples.
Coahuila – In September 2014, Coahuila became the first state to enact marriage equality by means of legislative vote.
Chihuahua (Juarez) – By mid 2013, the required five amparos had been issued. The state legislature did not act, and couples asked the Supreme Court to order the state to comply. So as to avoid such a ruling, in June 2015 the governor announced that the state would no longer enforce the unconstitutional law.
Guerrero (Acapulco) – also in June 2015, the governor of Guerrero announced that it would not enforce the marriage ban. This was proactive as the state had not processed five amparos. The governor has presented a bill to the state legislature to change the law.
Nayarit – In late December 2015, the legislature voted 26 to 1 in favor of marriage equality.
Jalisco (Guadalajara) – today. This one is a pinch more complicated. Whenever a state law is published in Mexico, opponents have 30 days to file an action of unconstitutionality with the federal courts. Jalisco had recently made an unrelated change in its marriage laws and had republished the marriage code. This opened a window in which activists could challenge the limitations as to gender. The Supreme Court heard the case and today ruled 11 to 0 that Jalisco’s ban on same-sex marriage is unconstitutional.
Guerrero legalizes same-sex marriage
June 25th, 2015
The state of Guerrero (Acapulco) in Mexico has announced that it will no longer enforce its ban on same-sex marriages.
In real terms, this means that Guerrero will not enforce the ampero process which requires the first five couples in a state to hire a lawyer, go to court, and get official permission to marry.
Marriage equality comes to Chihuahua
June 11th, 2015
Although Chihuahua is perhaps known most for a tiny dog, it is actually Mexico’s biggest state – roughly the size of Michigan – placed alongside New Mexico and Texas. It is also the latest Mexican state to lift all restrictions to same-sex marriage. (proceso badly translated by google)
The government of Cesar Duarte Jaquez decided not to put more obstacles to marriages between same sex and from now on married couples who request them.
Chihuahua joins Quintana Roo (Cancun) and Coahuila (the state to Chihuahua’s east also bordering Texas) as states in which marriages are now immediately available. In the remainder of Mexico, couples may still need to go to court to get an amparo (civil rights ruling), but the outcome of the ruling is assured to be positive.
Marriage licenses now a certainty across Mexico
June 5th, 2015
Mexico has a complicated judicial system, particularly when it comes to civil rights. Rather than single marriage rulings that apply broadly to all citizens, individual couples get an amparo which relates specifically to their case. However, once five amparos have been issued in a state, precedent is established and then marriage equality has reached that state.
Or something like that.
Well it now appears that the rule of five also applies on a federal level. (Buzzfeed)
The Supreme Court and several lower courts have already ruled in almost every state that same-sex couples have the right to marry under the Mexican constitution. But because of the Mexican court system’s often confusing technicalities, none of those decisions have been binding in future cases. Theoretically, any court could rule against a couple who has sued for the right to marry even though there have been many cases decided in favor of others couples.
That is no longer true. On Wednesday, Mexico’s Supreme Court issued the first blanket statement that laws prohibiting same-sex couples from marrying are unconstitutional in every state — what is known as “generic jurisprudence.”
This is not the first time the court had resolved a case with that exact sentence. But Colima is the fifth state in which the court had used this language, and five is a magic number in the Mexican system. Along with rulings from Oaxaca, Baja California, Sinaloa, and the State of México, the Colima ruling forms a new “generic jurisprudence” binding on judges issuing rulings in all the states of Mexico.
This does not necessarily mean that marriage licenses will now be handed out by every jurisdiction across the nation, but it means that every legal challenge will now have the same result. Perhaps it can be seen as a technicality that sets a two step process for obtaining a marriage license.
But as each state reaches five amparos (which are now assured) that state will be obligated to issue licenses. Or, in other words, the sixth same-sex couple to marry in a Mexican state will not have to go through the step of a legal challenge. And some states already have reached this threshold.
It may be that we can now say that same-sex marriages are now available across all of Mexico – though perhaps not yet full equality.
Coahuila legislature votes in marriage equality
September 2nd, 2014
The Congress of Coahuila, a northern state in Mexico, approved same sex marriages on Monday.
The legislators modified more than 40 articles of the State’s Civil Law to give all the rights and obligations of a heterosexual marriage to homosexual couples.
Before the reform, marriage in the state was defined as the union of a man and a woman in order to procreate.
With the changes, the article now states that marriage is “the union between two people with the possibility of procreating or adopting.” said the local congressman that promoted the reform, Samuel Acevedo, according to EFE news agency.
Coahuila is the first of Mexico’s 31 states to enact marriage equality. The Federal District acted similarly in 2009, and in 2011 in the state of Quintana Roo, a local judge pointed out that the local law made no mention of the gender of marriage participants. And two other states are part way through a lengthy judicial process which would find the ban on same-sex marriages to violate the constitutional rights of citizens. Marriages conducted in any Mexican state or the Federal District are recognized throughout the country.
Until 1836, Coahuila included the territory that is now Texas.
Two more Mexican states have same-sex marriages
December 30th, 2013
Mexico’s position on marriage equality is a convoluted one. Same-sex marriages may be conducted in Mexico City and in the state of Quintana Roo, but are recognized across the nation.
One state bans same-sex marriage, a few others offer civil unions, and the rest are in a sort of flux.
A year ago the Mexican Supreme Court ruled that same-sex couples have the civil right of marriage. However, the amparo process is not that of a single universal decision; rather, it speaks specifically to each case and, absent any contrary decisions, eventually and cumulatively gains the weight of law.
Now two more states have contributed to that on-going process, Jalisco and Chihuahua (ai!). From CNN Mexico (with a miserable Google translation)
Zaira de la O and Martha Sandoval will give you the “I do” before a judge in Jalisco on Saturday, becoming the first gay couple in a civil marriage in this state.
The Jalisco Civil Code does not provide for marriage between same sex couples get married but after the fourth Civil District Judge Material, granted them under.
and Diario (equally bad translation)
Accompanied by family and friends, Marco Quiroz and Jaime Villaseñor Gándara Salcido, were married on Friday at 18:00 in the city of Chihuahua. Judge who married in the Registry Office of Chihuahua, explained that because District judge ordered an injunction that marriage promoted by the parties and by the authority conferred by the State, the said united in marriage. “With all the rights that the law gives them, but also with all the obligations that it provides for married “both nodded at each word judge and became the first same-sex marriage in the state of Chihuahua.
It appears that there are four more couples in Chihuahua who wish to marry. If I understand the process correctly (and I don’t claim to), if each is granted an ampara, marriage equality becomes law in that state.
Violence-Plagued City in Mexico Elects First Gay Mayor
July 18th, 2013
Voters in Fresnillo (pop: 110,000), in northern Mexico’s violence-plagued Zacatecas state, have elected a new mayor. Benjamín Medrano Quezada, of the Partido Revolucionario Institucional (PRI), will become Mexico’s first openly gay mayor when he is sworn into office. He won on a campaign aimed at building a new wastewater treatment plant, ending the drinking water shortage, improving roads and basic services, and addressing problems with the city’s troubled police force. Those concerns are far more pressing than anything else right now:
He said Thursday he won’t challenge the Catholic church, or advocate for gay marriage or adoption. Medrano instead says he’ll focus on more pressing issues, like professionalizing and vetting the city’s police force.
“It’s not like I’m going to paint town hall pink,” Medrano said.
SCOTUS ‘rules’ marriage legal in Mexico
February 18th, 2013
Mexico’s legal system is complicated, especially when it comes to matters of civil rights. Earlier this month, we reported that the Supreme Court of Mexico had declared that same-sex couples are entitled to the same rights to marriage as heterosexual couples. Today they clarified the basis of their thinking.
Oddly enough, it was the US Supreme Court: (Buzzfeed)
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.
As they address the Windsor and Perry cases this spring, let’s hope that the Supreme Court rules as wisely in the US as the Mexico Court has found its rulings to be in Mexico.
Marriage update – North America
January 25th, 2013
It’s getting marriagey all over the place. And it’s also getting hard to keep track of what is going on where. So here is an update to help (which will probably be outdated by the time I hit “publish”).
Canada – Marriage has been equal since 2005.
Mexico – Marriage is equal in Mexico City, and marriages conducted there are recognize throughout the nation. However, in December, the Supreme Court unanimously found that an anti-gay marriage law in Oaxaca was unconstitutional. Due to Mexico’s complicated legal system, this means that marriages are highly likely to eventually be legal throughout the nation, but the process requires that five same-sex couples in each state file an amparo (civil rights claim) and that the court issue the same ruling on each. It may take some time for the legality of the state by state process to catch up, but the reality is that any Mexican couple wishing to marry probably can, either immediately or through petition.
United States – Several locales provide or have provided marriage equally:
- Massachusetts –
- California – 2008, but rescinded that year
- Connecticut – 2008
- Vermont – 2009
- Iowa – 2009
- New Hampshire – 2010
- The District of Columbia – 2010
- New York – 2011
- Washington – 2012
- Maryland – 2012
- Maine – 2013
In addition, two Native American tribes, the Coquille in Oregon and the Suquamish in Washington provide marriage equally to their members.
Current and upcoming movement on the marriage front includes:
* DOMA3 – several federal courts have found the federal prohibition on recognition of legally married same-sex couples – the Defense of Marriage Act, Section 3 – to be unconstitutional on several grounds. The Supreme Court of the United States has agreed to hear one case, Windsor v. the United States, a case in which Edie Windsor was assessed in excess of $300,000 in inheritance tax from her wife’s estate, a tax that does not apply to heterosexuals. On Tuesday, the special counsel for the House Bipartisan Legal Advisory Group (at the direction of House Speaker John Boehner) filed its arguments in defense of the law (I’ll try to get an analysis up soon). It argued that BLAG has standing to support the law, that only rational basis should apply to anti-gay discrimination, that the nation needs uniform recognition, and that states should be allowed to decline to offer equality if they so choose (thus, I assume, vetoing other states in the name of uniformity). Today Professor Victoria C. Jackson will, at the court’s request, filing a brief insisting that BLAG has no standing and on February 26th, Windsor’s team will present arguments as to why she should not be discriminated against. Oral arguments before SCOTUS will be on March 27th, and the Court will likely release it’s ruling in June. Whichever way it goes, it will probably only impact couples in states which allow marriage.
* Proposition 8 – this is the highest profile case, but it could end up having the least legal effect. In 2008, the California Supreme Court found the state’s law prohibiting same-sex marriage to be a violation of the state’s constitution. For several months, same-sex couples could legally marry, but in November the voters approved Proposition 8 by 52%, ending marriage equality in the Golden State. In May 2009, Ted Olson, one of the most prominent Republican attorneys and David Boies, one of the most prominent Democratic attorneys, teamed up to fight for the legal overturn of that proposition. In January 2010, though cameras were banned from the courtroom, the nation was captivated by the reporting about the case – a trial not only on the legality of the proposition but also on its merits. Federal Judge Vaughn Walker eventually found the proposition to violate the US Constitution on broad grounds. The Ninth Circuit Court of Appeals upheld the decision, but on much narrower grounds: that a state cannot provide a right to all citizens and then take it away from a select few. Last month the Supreme Court agreed to hear the appeal, but added the question as to whether the proponents defending the law (the Governor and Attorney General declined to do so) have standing. On Tuesday the proponents of the law filed their brief (I’ll try to get an analysis up soon). Olson and Boies have until February 21st to respond, and oral arguments will be on March 26th with a likely result in June. While the Court could find that the US Constitution guarantees marriage equality across the land, it could also choose to narrow its ruling to the unique issues of the case and only impact Californians.
* Rhode Island – on Tuesday, the House Judiciary Committee unanimously approved the marriage bill. The full House voted in favor today 51-19. However, the Senate is less certain. Although Rhode Island is virtually a single-party state (the Senate has 32 Democrats, 5 Republicans, and 1 Independent), the Senate President, Teresa Paiva-Weed, is an opponent to equality. She has said that she will allow a committee to hear the matter, but in times past she has made certain that committees were selected to prevent equality.
I have started a petition at Change.org to request that should Paiva-Weed obstruct or block the passage of this bill, that Rhode Island State Senators remove her from power. Please go sign this petition.
* Illinois – a marriage bill was submitted during the first week of the year in a lame-duck session. Due to difficulty in corralling members returning from holiday, the vote never took place.
After the new legislature was is session, the bill was reintroduced. Currently the status is a bit in limbo as the bill is yet to be sent to committee.
However, that does not mean that there is no excitement, just that it’s happening outside the legislature and in an unexpected arena. The GOP chairman has come out in favor of marriage, which has angered social conservatives in the state. Bit though they are demanding his resignation and threatening ouster, the party insiders are lining up behind the chairman. At the moment it seem like the prevailing position may end up, “we may not support equality, but we support those who do.” In any case, this latest public squabble serves our community well.
* Minnesota – fresh off a victory in turning back an anti-marriage bill in November, Minnesotans for All Families is fighting on and will present a marriage bill to the legislature next month. The political strategist who generaled the battle is staying on to finish the war.
Polls are breaking even in the state and the DFL (Democratic) party has a slim lead in each house, so they will have their work cut out for them. But I would be surprised if the state did not take some movement towards couple recognition.
* Colorado – supporters filed an everything-but-the-name Civil Unions bill which is pretty much guaranteed to pass. More than half of each house has signed on as sponsors. This is as far as that state can go at present, as there is a state constitutional ban on equality.
* Wyoming – out of pretty much nowhere and flying way below the radar, lesbian Sen. Cathy Connolly has file both a domestic partnership bill and a marriage bill. Both have significant Republican support.
They may not be attracting much buzz on these bills due to party power; Republicans dominate both houses by overwhelming numbers. But Wyoming Republicans are traditionally pretty libertarian in their thinking and local papers are mostly quoting the bills’ Republican cosponsors. It may be early yet, but so far there doesn’t appear to be any visible organized opposition. I would not be altogether shocked if one of the bills passed or, at least, got a decent vote.
* New Jersey – the legislature of this state has already passed a marriage bill which was vetoed by the governor. However there are the paths to equality that might be achievable.
One is to take it to the people. But though a supporter brought such a bill, it was quickly dismissed due to the inherent insult of voting on a minority’s civil rights. (Personally, I’d rather win at the polls that fight over whether its an insult to do so.)
The second path, the one favored by equality leaders in the state, is to continue building support one by one until we have the numbers to override a veto. That would require substantial Republican support and this would be held off until after the next primary to minimize conservative backlash.
The third possibility doesn’t appear likely, but it shouldn’t be written off. Governor Chris Christie is a politician, and politicians are susceptible to evolution.
Christie made his mark in the Republican Party by being hard nose on fiscal issues but being more progressive on social issues. He was the poster boy for supporting civil unions, a position that made him seem ahead of the curve. As the Party moves away from anti-gay hostility, he may find it necessary to move as well. It’s not a bet I’d take, but it’s not outside the realm if possible for the Governor to hold to his views but still find some way to allow marriage to become law.
* Hawaii – I’ve no idea why marriage hasn’t already become law.
I think it can be hardest sometimes in states in which one party dominates. In mega-red states, we have little hope (though i just made a case for Wyoming). But in all-blue states, its not always much better. There’s no reason for Democrats to show the voters the difference between them and Republicans, so they fell less pressure to live up to their potential.
I’m sure I’ve missed some state in there. And, of course, you have to always expect that something completely unexpected will happen.
Tomorrow I’ll try to provide an update for Europe and South America.
Yesterday, a state representative in Hawaii filed a bill for marriage equality. She had no cosponsors. Also yesterday, 15 representatives filed a bill calling for a constitutional amendment banning equality. It was also introduced in the senate. Additionally, a state senator filed a pair of ‘take it to the people’ bills which would have voters choose to either allow or ban marriage in the constitution (he’s an opponent of equality). All in all, it looks dire for marriage in Hawaii.
Making Sense of the Mexico Decision, Ctd. — What is an Amparo?, Ctd.
December 7th, 2012
The whole amparo thing is still baffling to us gringos. To get caught up, see Timothy’s post on Mexico’s Supreme Court decision on same-sex marriage here, and my followup on what an amparo is here. I’m now hearing that for an amparo to become binding, it will require five consecutive identical decisions in a row in each state in order for the ruling to become binding for that state. My earlier understanding was that it only took five consecutive identical amparo rulings before it became binding nationwide. Based on this new understanding, Oaxaca needs two more amparos in a row before same-sex marriage becomes a done deal. Unless the legislature changes the law first, which this report (Google translate) indicates that process is now on a pretty good track.
Mexico has thirty states, plus the Distrito Federal, where Mexico City is located. Right now, the D.F. is the only place where same-sex couples can go to get married except for the three couples named in the Oaxacan amparos. Those marriages however are recognized nationwide. We learned yesterday that couples were trying to obtain marriage licenses in Toluca in the state of Mexico, with the aim of filing amparos if their request is denied. I haven’t heard the outcome of that attempt yet. The bottom line appears to be this: Mexico is now in a state-by-state process of providing marriage equality, much like the U.S. But since the process is going ahead with the national Supreme Court’s blessing, its possible that there may be somewhat fewer bumps in the road along the way.
Making Sense of the Mexico Decision, Ctd. — What is an Amparo?
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.
Making sense of the Mexico decision
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.
Mexico Supreme Court overturns state law restricting marriage
December 5th, 2012
Since 2010, same-sex couples can marry in Mexico City and have that marriage recognized throughout the country. But with a ruling from the Supreme Court today, such couples can now marry in the state of Oaxaca – and probably all across the nation.
La Suprema Corte de Justicia de la Nación (SCJN) eliminó del Código Civil de Oaxaca el artículo 143 que establecía que el matrimonio sólo es entre un hombre y una mujer.
A partir de hoy, se sustituye con la resolución de la Corte, que implica matrimonios “entre dos personas”, por lo que no importa si son de distintos sexos o del mismo.
The Supreme Court of Justice of the Nation (SCJN) eliminated Oaxaca Civil Code Article 143 which stated that marriage is only between a man and a woman.
Beginning today, is replaced with the Court ruling, involving marriages “between two people”, so it does not matter if they are of different sexes or the same.
Two years ago the Catholic Church went entirely nuts claiming that the court was bribed and threatened war. It will be interesting to see what absurdities they will claim about today’s unanimous decision.
Mexico City marriages get nationwide recognition
August 23rd, 2012
According to huffpo
Mexico’s Supreme Court ruled Tuesday that all 31 states must recognize same-sex marriages performed in the capital, though its decision does not force those states to begin marrying gay couples in their territory. In a 9-2 decision, the tribunal cited an article of the constitution requiring states to recognize legal contracts drawn up elsewhere. I thought they already we required.
Because they are. duh
Cancun equality on hold
January 12th, 2012
According to media reports, the Quintana Roo Secretary of State, Lois Gonzalez Flores, has ordered a legal review of the state’s marriage law. Until the state’s position is determined, same-sex marriages in Quintana Roo (home of Cancun) are put on hold.