Outside the Beltway

Marriage Equality Is Coming To Mexico

Thanks largely to a series of court decisions, same-sex marriage is effectively legal in all of Mexico.

Doug Mataconis · Wednesday, June 17, 2015 · 11 comments

Quietly, and mostly through a series of decisions by the Mexican Supreme Court and other judicial bodies, same-sex marriage is now basically legal in the entire nation of Mexico:

MEXICO CITY — His church turned him away, his family discouraged him from a public fight and the government of the state where he lives vowed it would never happen.

But it did. Hiram Gonzalez married his boyfriend, Severiano Chavez, last year in the northern state of Chihuahua, which, like most Mexican states, technically allows marriage only between a man and a woman.

Mr. Gonzalez and dozens of other gay couples in recent months have, however, found a powerful ally: Mexico’s Supreme Court.

In ruling after ruling, the court has said that state laws restricting marriage to heterosexuals are discriminatory. Though the decisions have been made to little public fanfare, they have had the effect of legalizing gay marriage in Mexico without enshrining it in law.

“When I heard the judge pronounce us legally married, I burst into tears,” said Mr. Gonzalez, 41, who, like nearly all gays marrying in Mexico, needed a court order enabling him to exchange vows.

As the United States awaits a landmark decision on gay marriage by the Supreme Court, the Mexican court’s rulings have added the country to a slowly growing list of Latin American nations permitting same-sex unions.

Argentina, Uruguay and Brazil already allow same-sex marriage. Chile plans to recognize same-sex civil unions this year; Ecuador approved civil unions in April; and Colombia grants same-sex couples many of the same rights extended to heterosexual married couples.

“It’s a huge change from where things were 10 years ago,” said Jason Pierceson, a professor at the University of Illinois at Springfield who studies gay marriage trends in Latin America.

The shift in Mexico, the second-largest country in Latin America after Brazil, is the product of a legal strategy that advocates used to bypass state legislatures, which have shown little inclination, and often hostility, to legalizing gay marriage.

In 2009, Mexico City, a federal district and large liberal island in this socially conservative country, legalized gay marriage — a first in Latin America. There have been 5,297 same-sex weddings here since then, some of them couples coming to the city from other states.

Of the nation’s 31 states, only one, Coahuila, near the Texas border, has legalized gay marriage. A second state, Quintana Roo, where Cancun is, has allowed gay unions since 2012, when advocates pointed out that its civil code on marriage did not stipulate that couples be one man and one woman.

In most of the rest of the country, marriage is legally defined as a union between a man and a woman — laws that may remain on the books despite the court’s decisions.

The Supreme Court upheld Mexico City’s law in 2010, adding that other states had to recognize marriages performed there.

Advocates of gay marriage saw that as an opportunity to use the court’s rulings to assert that marriage laws in other states were discriminatory.

The court — taking into account international decisions and anti-discrimination treaties that Mexico has signed — has steadily agreed, granting injunctions in individual cases permitting gay couples to marry in states where the laws forbid it.

A major turning point occurred this month when the court expanded on its rulings to issue a decree that any state law restricting marriage to heterosexuals is discriminatory.

“As the purpose of matrimony is not procreation, there is no justified reason that the matrimonial union be heterosexual, nor that it be stated as between only a man and only a woman,” the ruling said. “Such a statement turns out to be discriminatory in its mere expression.”

The ruling, however, does not automatically strike down the state marriage laws. However, it allows gay couples who are denied marriage rights in their states to seek injunctions from district judges, who are now obligated to grant them.

“Without a doubt, gay marriage is legal everywhere,” said Estefanía Vela Barba, an associate law professor at CIDE, a university in Mexico City. “If a same-sex couple comes along and the code says marriage is between a man and a woman and for the purposes of reproduction, the court says, ‘Ignore it, marriage is for two people.'”

The Roman Catholic Church, often an influential force socially and politically in a country that is 83 percent Catholic, objected to the ruling, saying the court had flouted two millenniums of convention.

“We reiterate our conviction, based on scientific, anthropological, philosophical, social and religious reasons, that the family, cell of society, is founded on the marriage of a man and a woman,” Msgr. Eugenio Lira Rugarcía, secretary general of the Mexican bishops’ conference, said in an email on Sunday in response to the decision.

Although there are differences between the two countries, the manner in which same-sex marriage is effectively becoming legalized in Mexico is not entirely dissimilar to what we have seen in the United States in the two years since the Supreme Court’s ruling in United States v. Windsor. Just as the Windsor case has become the blueprint that lawyers across the country have used in state after state to strike down laws barring same-sex marriage, litigants in Mexico seem to be using the Court’s rulings in cases that only impact one group of litigants to force change at the local level through the court system. Given the fact that state legislatures in Mexico seem to be reluctant to take any action at all on this topic, the Courts seem to be the best option for advancing marriage equality there and, of course, that has also been true in many parts of the United States where Republican-controlled legislatures and Constitutional Amendments that would require long, cumbersome processes to overturn, have made the idea of pursuing reform through the legislative process next to impossible for all practical purposes.

It appears that the process of legalizing same-sex marriage in Mexico via the court system in this manner will take some time before it has a full impact across all of the nation’s 31 states, but much as the outcome has been apparent here in the United States for some time, it seems clear that nationwide same-sex marriage will come to Mexico sooner rather than later. Given the expected outcome of the Supreme Court case here in the United States, that would mean that same-sex marriage would be legal in all three of North America’s largest nations. Canada, of course, had legalized same-sex marriage nearly ten years ago with the passage of the Civil Marriage Act. The news in Mexico, though, seems particularly significant given the fact that the nation is overwhelmingly Catholic and has long been perceived as being conservative on social issues such as this. Of course, they said the same thing about Ireland not too long ago and we saw what happened there. If nothing else, this seems to demonstrate just how profound the cultural change has been in this area and the degree to which, in the not too far off future, people are likely to wonder why we were debating this to begin with.