Thursday, October 27, 2022

Mexico's Wild Ride to Marriage Equality

Article maintained with help from Geraldina González de la Vega and Alex Alí Méndez Díaz. Last update: October 27, 2022.

Alex Alí Méndez Díaz
Between March 2010 and October 2022, Mexico achieved marriage equality state-by-state in all 31 states and federal capital Mexico City.

The process gained steam after 2015 when the Supreme Court of Justice of the Nation (SCJN) issued "jurisprudence" declaring that bans on marriage equality were unconstitutional. The ruling did two things: It put the states on notice that they needed to pass marriage equality and it created a pathway in states without marriage equality for a couple to go to a federal judge and get an injunction (amparo) forcing local officials to let them marry.

The 2015 SCJN ruling said: "Marriage. The law of any federative entity that, on the one hand, considers that the purpose of it [marriage] is procreation and/or that defines it as that which is celebrated between a man and a woman, is unconstitutional." ("Matrimonio. La ley de cualquier entidad federativa que, por un lado, considere que la finalidad de aquél es la procreación y/o que lo defina como el que se celebra entre un hombre y una mujer, es inconstitucional.")

The ruling resulted from a project by activist-lawyer Alex Alí Méndez Díaz and his organization México Igualitario that involved getting enough identical cases before the Supreme Court from multiple states to create an opportunity for the court to declare jurisprudence against bans on marriage equality.

Although marriage equality is now in place nationwide, the process is not quite finished because five states have marriage equality only because their individual bans were struck down by the Supreme Court or because the state executive branch has chosen not to enforce a ban that is still on the books. In Mexico's system, these five states need to actually write marriage equality into their laws to comply with the 2015 Supreme Court ruling.

Below is how each state achieved marriage equality to date. The five states that still need to update their legal codes are Aguascalientes, Chiapas, Chihuahua, Guanajuato and Nuevo León.

Aguascalientes (SCJN ruling)
Baja California (nonenforcement, then legislative passage)
Baja California Sur (legislative)
Campeche (legislative)
Chiapas (SCJN ruling)
Chihuahua (ban not being enforced)
Coahuila (legislative)
Colima (legislative)
Durango (nonenforcement, then legislative)
Guanajuato (ban not being enforced)
Guerrero (legislative)
Hidalgo (legislative)
Jalisco (SCJN ruling, then legislative)
Estado de México (legislative)
Mexico City (legislative)
Michoacán (legislative)
Morelos (legislative)
Nayarit (legislative)
Nuevo León (SCJN ruling)
Oaxaca (legislative)
Puebla (SCJN ruling, then legislative)
Querétaro (legislative)
Quintana Roo (administrative ruling that existing law was gender-neutral)
San Luis Potosí (legislative)
Sinaloa (legislative)
Sonora (legislative)
Tabasco (legislative)
Tamaulipas (legislative)
Tlaxcala (legislative)
Veracruz (SCJN ruling, then legislative)
Yucatán (legislative)
Zacatecas (legislative)

In states where bans died via a Supreme Court ruling, here's what happened: When any law is passed in Mexico and takes effect, there is a 30-day window for certain governmental entities to challenge the law with an action of unconstitutionality at the Supreme Court. Starting in 2016, the states were individually targeted with actions of unconstitutionality by human rights commissions immediately after passing various laws that either repeated the man-woman definition of marriage or closely intersected with marriage law (such as laws regarding pensions, health-care benefits or concubinage).

Adoption

Same-sex couples have adoption rights nationwide. The Supreme Court reiterated its jurisprudence in 2016, writing: "ADOPTION. The best interest of the minor is based on the suitability of the adopters, within which are irrelevant the type of family into which [the minor] will be integrated, as well as the sexual orientation or civil status of [the adopters]." ("Adopción. El interés superior del menor de edad se basa en la idoneidad de los adoptantes, dentro de la cual son irrelevantes el tipo de familia al que aquél será integrado, así como la orientación sexual o el estado civil de éstos.")