Supreme Court Inches Mexico Closer to Legalized Gay Marriage Steve Williams - Care2.com
go to original December 13, 2012

Mexico’s Supreme Court issued a unanimous ruling last week against a state’s gay marriage ban, paving the way for future challenges and, eventually, for same-sex marriage to be made legal throughout the nation.

The ruling, based on three cases decided together, struck down the Oaxaca state ban. The decision is partly based on a February ruling from the Inter-American Court of Human Rights that found governments could not discriminate on grounds of sexual orientation.

However, the opinion does not strike down gay marriage bans across the nation. This is because Mexico’s Supreme Court does not have the power to render all identical statutes unenforceable in this manner. Instead, certain case rulings have a kind of cumulative effect where, if five consecutive decisions are issued with identical conclusions about a particular statute then, taking this topic as an example, all state laws that de facto ban gay marriage could be struck down.

Three amparos, the term given cases of this kind, have been rendered here, so two more are required to invoke this kind of action. That could be a relatively quick process because Mexico’s Supreme Court tends to work on a very quick schedule when compared to the United States Supreme Court and there are already rumored to be a number of other amparos cases waiting to be filed.

That said, it may be that five identical cases are not necessary. Given the nature of the court’s decision, that it was unanimous, it could be that states will decide that rather than defend the statutes in court they will move to change their statute to make marriage gay-inclusive.

There is even more good news to come out of this ruling.

Due to the fact that the Supreme Court invoked the Inter-American Accord on Human Rights, there may now be precedent for all other Latin American countries who have signed to the accord to determine that de facto bans on gay marriage are unlawful. This, for instance, could have an impact on cases in Chile where a case against the country’s gay marriage ban hinges in part on the Inter-American Accord on Human Rights.

Hunter Carter, a New York-based lawyer representing three Chilean couples, is quoted as saying, ”Today’s decision in Mexico is a victory for human dignity, equality and family. It will greatly reinforce arguments in the U.S., Chile, and in the Inter-American Commission on Human Rights, that equal access to marriage for committed same-sex couples is a human right.”

As to how wide ranging this decision will be, this will largely depend on the way Mexico’s Supreme Court has chosen to frame its decision, something we will not know until the court issues its full opinion in the coming weeks.

In 2010 the nation’s capital Mexico City began granting gay marriage licenses, an action that survived what the Supreme Court called “inappropriate” legal challenges made by several religious conservative leaders. The Supreme Court later ruled that all of Mexico’s 31 states must honor the marriages carried out in Mexico City.

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