Thursday, June 2, 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: June 2, 2022.

Alex Alí Méndez Díaz
Twenty-six of Mexico's 31 states and federal capital Mexico City have marriage equality and same-sex couples can marry in the other five states if they go to a federal judge and get a personalized injunction (amparo), a process that is time-consuming and requires paying a lawyer for help. The judge cannot refuse the amparo.

The requirement on judges resulted from a 2015 ruling by the Supreme Court of Justice of the Nation (SCJN) that declared all bans on marriage equality unconstitutional. The Supreme Court, however, has no power to end all states' bans simultaneously, and can only force individual states' bans out of existence in specific situations.

The ruling says: "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 SCJN 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.

Below are the states where same-sex couples can marry normally. Twenty states and Mexico City have passed marriage equality legislatively, three states have marriage equality because Supreme Court rulings against their individual bans overrode their laws, and three states decided administratively to stop enforcing their unconstitutional bans. Ultimately, all states need to put marriage equality in their lawbooks because of the Supreme Court jurisprudence.

Aguascalientes (SCJN ruling)
Baja California (administrative, then legislative)
Baja California Sur (legislative)
Campeche (legislative)
Chiapas (SCJN ruling)
Chihuahua (administrative)
Coahuila (legislative)
Colima (legislative)
Guanajuato (administrative)
Hidalgo (legislative)
Jalisco (SCJN ruling, then 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)
San Luis Potosí (legislative)
Sinaloa (legislative)
Sonora (legislative)
Tlaxcala (legislative)
Veracruz (SCJN ruling, then legislative)
Yucatán (legislative)
Zacatecas (legislative)

As to states whose 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).

What's next?

Mexico can only get marriage equality state by state (unless the federal constitution is amended).

Twenty states — Baja California, Baja California Sur, Campeche, Coahuila, Colima, Hidalgo, Jalisco, Michoacán, Morelos, Nayarit, Oaxaca, Puebla, Querétaro, San Luis Potosí, Sinaloa, Sonora, Tlaxcala, Veracruz, Yucatán and Zacatecas — and Mexico City have passed marriage equality legislatively.

Three states — Aguascalientes, Chiapas and Nuevo León — have marriage equality because their bans were terminated by the Supreme Court of Justice of the Nation. They still need to pass legislation to bring their laws into accord with the court's rulings, but marriage equality is in place now.

Two states — Chihuahua and Guanajuato — currently are not enforcing their bans by administrative fiat. They also need to pass legislation.

And one state — Quintana Roo — decided its laws never prevented marriage equality in the first place, which may be sufficient.

The five states without full marriage equality are Durango, Guerrero, México (there's a state named México), Tabasco and Tamaulipas.

Ultimately, all states have to put marriage equality in their lawbooks because of the 2015 Supreme Court jurisprudence ruling, and there are 10 (or possibly 11, depending on Quintana Roo) that have not done so.

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.")