The road ahead for gay marriage in Mexico

I noted yesterday that the Mexican Supreme Court ruling striking down Oaxaca’s gay marriage ban didn’t mean that same-sex couples will immediately be able to marry across Mexico. That’s because in the Mexican legal system it takes more than one ruling to force a general change in the law—this is a big difference from how the legal system works in the United States.

Geraldina de la Vega, one of the lawyers who worked on the Oaxacan suit, has a great explanation of what happens now at Animal Politico. It’s in Spanish, so here’s a summary:

The court’s ruling only applies to the three couples who filed suit—for now. The court said that the law defining marriage as between a man and a woman must be interpreted as between two people, and therefore the registrars must allow the three couples who filed suit to marry.

But, de la Vega writes, this type of “sentence does not have general effects; its effects are limited to the [people] who brought suit…. Although an injunction is determined that a law is contrary to the Constitution, the judgment will have effect only for those who filed the claim.”

If the court rules the same way in five different cases, binding national precedent is set, which in Mexico is known as “jurisprudencia”: “interpretation of an obligatory nature for all other federal judges and for local judges.”

So with three cases decided in favor of same-sex couples’ right to marry, the Mexican legal system is more than halfway to establishing binding, nationwide jurisprudencia. But it’s not there yet.

De la Vega writes:

For the three couples that brought suit, they have won everything. In Oaxaca, the first three marriages in the country will be celebrated under court order.

Now, as far as the effects [of this ruling] in general, in reality the effects are indirect…. The fact that these three suits won indicate that there are very good chances of success for more suits and Jurisprudencia will be established.

One of the Supreme Court ministers (the titles for justices in Mexico), José Ramón Cossío, made it clear in an interview with CNN en Español just how wide they’re opening the door to future rulings. (This is the same minister who tweeted before the court session that they would be issuing the ruling today—just another indication of how different the Mexican Supreme Court is from the United States Supreme Court.) Cossío said:

The three cases are effective with respect to the state of Oaxaca. Nevertheless, the position that we have in the Supreme Court as the nation’s highest court, it is foreseeable that if other people of other [states] contesting a code [similar to Oaxaca's], the court will reiterate its criteria and that, with the passage of months, will create jurisprudencia that will become binding. While the Supreme Court continues to maintain this criteria, legislation of different states of our federation can be challenged and declared unconstitutional as happened today.

Let the lawsuits begin…

Thanks to @Blabbeando for help on this one.

One thought on “The road ahead for gay marriage in Mexico

  1. Thanks for the article. I suggest a different translation of the Animal Político: (“En Oaxaca se celebrarán los tres primeros matrimonios en el país por orden judicial[2]“.) Rather than “In Oaxaca, the first three marriages in the country will be celebrated under court order” it would be more accurate to write: “In Oaxaca, the marriages will be the first three in the country celebrated under court order”.

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