Unless you’re seriously interested in the technicalities of how the Mexican Supreme Court’s ruling will lead to universal marriage rights in Mexico, you can stop reading now.
The bottom line is that Wednesday’s rulings will almost definitely lead to marriage being available to same-sex couples in every state, but it’s going to take a lot of suing before we get there.
I wrote yesterday about how it takes more than one court ruling to change a law in Mexico. With the three cases decided in favor of same-same sex couples on Wednesday, the court will still need to rule in favor of couples in two more cases to form what is known as “jurisprudencia,” precedent that binds all judges to strike down bans on same-sex marriage. Five cases decided the same way equals jurisprudencia.
The AP wrote yesterday evening that this actually means the judges must find in favor of two more Oaxacan couples to create jurisprudencia that would bind only Oaxacan judges. What’s more, they’d have to find in favor of five couples in each of Mexico’s other 30 states to create jurisprudencia that binds every state.
That might be true. Or maybe not. It turns out it’s not entirely clear right now how this kind of ruling changes Mexican law.
I checked in with Geraldina de la Vega, one of the lawyers on the case and a national expert in sexuality law. She explained much of the confusion comes from the fact that the court is operating under constitutional reforms passed in 2011 affecting how the court overturns laws. We don’t know how they’ll apply to this ruling because they haven’t been tested yet. And, to make matters even more confusing, the national congress has failed to pass legislation implementing the constitutional reforms, which could clear a lot of this up.
The written ruling in the Oaxacan case may answer a lot of these questions when it is published. But for now, de la Vega said, “What is hoped for is a ‘traditional’ solution, that is to say, that ‘jurisprudencia’ will be created with two more rulings … binding for all judges.”
Congress could clean up this mess by passing a law clarifying the constitutional reforms. So could state legislators, by passing their marriage laws under the pressure of the court ruling (like lawmakers are now talking about in Oaxaca and Yucatán, etc.)
“It’s a long process,” she concluded. “But for now we can say that any couple that wants to marry will be able to do it if they have patience. That’s not [ideal], but a little better than it was a week ago.”