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Potential Legal Consequences of Mexico's Initiative to Legalize Same-Sex Marriage

Graciela Jasa Silveira - Jurist
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July 5, 2016

Mexican President Enrique Peña Nieto made public two bills [PDF, in Spanish] to make-constitutional the right to marriage, and to amend federal family law to guarantee same-sex partners access to marriage and adoption on May 17. This is unquestionably an important event. If successful, the initiatives will legalize same-sex marriage nationwide, and have major effects on same-sex families in relation to a number of different public benefits regulated exclusively, or in part, by federal law (like labor, immigration, general health, federal crimes, among many others).

However, the fact is that while proponents of marriage equality may cheer over the presidential initiatives, the initiatives also raise issues of profound constitutional and policy significance. First among these is the issue of federal legislative power in the family law domain. There is no such explicit federal power pertaining to marriage. Mexico, like the US, has a federal government. While the US Constitution enumerates certain powers for the federal government, responsibility for marriage and family issues is not among them, as this is an area of law reserved to states as part of their residual powers. Yet, the Mexico bills are controversial because they reflect a long-standing trend to federalize family law in Mexico.

Historically, family law was codified exclusively at the local level by each individual state. However, since late 1800’s there has been concerted attempts by the federal government to centralize family law while preserving the authority of individual states to legislate in this matter. These measures include the enactment and maintenance of the federal civil code which Peña Nietos’ bill aims to amend when jurist have long regarded this code as fundamentally incompatible with our constitutional system. This initiative can best be characterized as an attempt at relaunching the federal government’s role in steering national family law policy, which lost its influence after the year 2000 when Mexico City became a trailblazer of LGBT and women’s rights.

The least controversial part of Peña Nietos’ bill, the extension of including of the right to marriage in the constitution, also requires reconsideration. Many queer activists and scholars have relentlessly critiqued same-sex marriage advocacy. They have noted that the use of marriage as a reference point to advance LGBT rights has entailed prioritizing of the marital norm and orthodox gendered roles while doing little to advance the needs of the larger LGBT community, and of rights of families living outside of marriage. Thus, while the bill may pave the way for a culmination of LGBT advocacy, the question is still whether this progressive initiative will actually materialize into something much more meaningful that directs family law away from heterosexual and gendered family models.

Read the rest at Jurist

Related: Morelos, First State to Enact Same-Sex Marriage in Mexico (Prensa Latina)

Related: 'We Applaud the Mexican President's and Supreme Court's Support for Marriage Equality' (The Huffington Post)

Related: One Billion People Worldwide Live with Marriage Equality (Frontiers Media)

Related: First Independent Expert to Tackle LGBTI Discrimination: “Historic Victory” (Inter Press Service

Related: School Discipline Policies Force LGBT Kids Out of the Classroom (TakePart)

Photo: Jorge Luis Baños/IPS

  Check out ACT LGBT Association of Commerce & Tourism

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