Changing Mexico’s Constitution for Marriage Equality: What’s At Stake

Jim Burroway

May 18th, 2016

Mexico's President Enrique Peña Nieto

Mexico’s President Enrique Peña Nieto

Yesterday, Mexican President Enrique Peña Nieto announced four initiatives aimed at bringing marriage equality across the entire nation and promoting LGBT rights around the world. One of those measures would also allow changes to birth certificates to accurately reflect trans people’s gender identity. The first initiative, which bears close watching as it is the one most likely to engender a dangerous backlash, would amend Mexico’s constitution.

According to yesterday’s announcement:

An initiative to reform Article 4 of the Constitution was signed to clearly incorporate the judgment of the Supreme Court of Justice of the Nation which recognized as a human right that people can marry without discrimination.

That is, that marriages are made without discrimination based on ethnic or national origin, disability, social status, health conditions, religion, gender or sexual preference. Thus, equal marriage would be explicit in the Constitution.

Article 4 is, a rather wide-ranging set of clauses whch can be summed up as a kind of an equal rights article. This is the full text of Article 4, in a translation provided by UNAM (The National Autonomous University of Mexico, the country’s most prestigious universities) (PDF):

Article 4

Men and women are equal under the law. The law shall protect family organization and development.

Every person has a right to decide in a free, mature and informed way, the number and spacing of their children.

Every person has a right to receive medical treatment when deemed as necessary. The law shall not only define the guiding criterial regulating access to health services but also establish concurrent activities to be carried out by the federation and the states in organizing public health services under article 73, paragraph XVI of this constitution.

Every person has a right to live in an adequate environment for her development and welfare.

Every family has a right to a dignified and decent household. The law shall establish all regulations and incentives deemed to be necessary to achieve such a goal.

Children’s needs to nourishment, health, education, recreation and integral development shall be fulfilled.

Ascendants, tutors and guardians shall be obligated to enforce the aforementioned rights. The States shall provide whatever deemed as necessary to uphold both children’s dignity and the enforcement of children’s rights.

The State shall help out private individuals in enforcing children’s rights.

Anti-gay groups in Mexico have claimed that the sentence about “protect family organization and development” precluded allowing same-sex marriage, but so far the Supreme Court of Justice of the Nation, Mexico’s highest court, hasn’t seen it that way. One can also imagine that several other clauses dealing with “a dignified and decent household” and children’s “integral development” could be spun by anti-gay groups as well. So in that sense, Peña Nieto’s proposal to clarify Article 4 would certainly do the trick.

But it seems like it could be a daunting task. Not because it’s so rarely done — Mexico’s constitution has undergone numerous substantial changes in its 99-year history, the most recent in 2011 when the right to food was inserted into Articles 4 and 27. (By the way, while the process of changing the Constitution is referred to as an amendment, Mexico’s Constitution is actually changed by the process. It does not carry a series of amendments like the U.S. Constitution.) The process for amending the Constitution is found in Article 135:

This Constitution can be amended or reformed by two thirds out of the attending members of Congress at the respective session. Such amendments and reforms shall be valid when ratified by the majority out of the State Legislatures. Either the Congress or the Permanent Commission during congressional recesses shall compute the State Legislatures votes and declare the approval of the respective amendments and reforms.

So, two-thirds of Congress and half of the Sates need to approve. When one looks at the partisan composition of Congress, at least that part looks doable:

Pena Nieto’s party and allies control about half the seats in both houses, and the measure could also pick up support from the leftist opposition Democratic Revolution Party.

As for the states, eight of the 31 states, and the Federal District, already have marriage equality. (The Federal District, which was the first jurisdiction to approve marriage equality in 2009, doesn’t get a say when amending the Constitution.)  Seven of those eight states completed the process under their own initiative. Only one was forced to do so by the Supreme Court. Peña Nieto’s ruling PRI (Institutional Revolutionary Party) holds 19 of 31 governorships and 20 state legislatures, which means that at least from the standpoint of party control, that also looks doable.

But the entire process still bears watching. I don’t know how fast all of this can happen, but Peña Nieto’s term ends in 2018, when Mexico will elect a new President and Congress. And it’s not clear to me how much input Peña Nieto will have in the actual wording of Article 4, although I suspect it could be substantial. That will bear watching. And I don’t know to what extent this move could open the doors to anti-marriage mischief.  We can be assured the Catholic Church in Mexico will play a big role. And there’s no doubt that several American anti-gay groups will see an opening to expand their influence south of the border. Mexico’s politics have always been complicated, its legal system more so, and transparency has never been its strong suit. Fun times ahead…


May 19th, 2016

Well, we can bet that Brian Brown will be posturing and asking for money to fax the members of the Mexican congress to save “natural” marriage.

Is there any sense of the feeling among the population at large on this? A majority in favor, one hopes?

Ben in oakland

May 19th, 2016

Hunter, I really don’t know what people in Mexico may think. I’ve been there three times in the past three years, and I’ve observed gay couples in Guadalajara and Mexico City, holding hands, openly gay signage in the Zona Rosa, and the progress of marriage equality in the past five or six years.

My suspicion is this, but it’s not just based upon Mexico: I’m coming to the conclusion that the vast majority of people, at least those in the civilized world, really don’t give a damn, until someone on a Grifting mission, or a homo-hating-homo, comes in and gets them riled up. The former do it for the money, the latter do it to deflect attention and to battle their own demons, and both do it for power over other people.

Can I prove it? no. But as far as I can tell in Mexico, most people don’t seem to give a damn.

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