Monday, December 20, 2021

Mexico's Wild Ride to Marriage Equality

Article maintained with help from Geraldina González de la Vega and Alex Alí Méndez Díaz. Last update: Dec. 20, 2021.

Alex Alí Méndez Díaz
Twenty-five of Mexico's 31 states and federal capital Mexico City have marriage equality and same-sex couples can marry in the other six 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. Eighteen states and Mexico City have passed marriage equality legislatively, four 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)
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)
Yucatán (legislative)
Zacatecas (legislative)

As to states whose bans are dead because of Supreme Court rulings, 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. In three of those states, legislators made changes to their marriage laws, unrelated to marriage equality, and the revised paragraphs also included existing man-woman language. The revisions qualified as "new" laws that could be challenged during the 30 days after they took effect. The National Human Rights Commission filed actions of unconstitutionality against the man-woman language and the SCJN struck down the states' bans in separate rulings that began in 2016. The states likely were unaware they were setting up their same-sex-marriage bans for strikedown.

In one those states, Aguascalientes, the challenged new law dealt with the health-care and pension system for state-government workers, and the National Human Rights Commission successfully argued to the SCJN that health care, pension and marriage laws are so dependent on each other that the man-woman definition of marriage, which was not new, needed to be tossed out as well. The SCJN invalidated all state laws that defined marriage as between a man and woman in 2019.

Going forward, additional state congresses will pass marriage equality — because ultimately their lawbooks need to reflect the 2015 Supreme Court jurisprudence ruling — and, in the meantime, additional states may stop enforcing their unconstitutional bans by administrative fiat or see their bans individually terminated via ongoing legal actions.

Beyond all that, in December 2019, the ruling Morena party proposed a federal constitutional amendment under which any state that hasn't passed a marriage-equality law must do so within three months of the amendment taking effect. The amendment also would invalidate all remaining state bans on marriage equality the moment it takes effect and extend to all civil-union couples, retroactive to when they entered the union, every right and obligation of marriage. Only 18 of the 25 states with marriage equality (and Mexico City) arrived there by passage of a law, so the amendment would force the hands of 13 states. Amending Mexico's constitution requires a two-thirds vote by members present the day of the vote in the federal Chamber of Deputies and the Senate of the Republic, followed by ratification by more than half of the 32 local congresses (31 state congresses and Mexico City's).

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.")

• Here's a shorter, simpler article I wrote that shows which states still need to do what before Mexico is done.

Where Mexico Stands Right Now on Marriage Equality (lite version)



Last update: Dec. 20, 2021

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

There are 31 states and Mexico City, the federal capital.

Twenty-five states and Mexico City have marriage equality.

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

Four states — Aguascalientes, Chiapas, Jalisco 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.

In the other six states, same-sex couples can marry only if they go to a federal judge and get an injunction (amparo), a path that is both time-consuming and requires paying a lawyer for help. The judge cannot refuse the amparo.

The requirement on judges resulted from a 2015 jurisprudence ruling by the Supreme Court that declared all bans on marriage equality unconstitutional.

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

Ultimately, all states need to put marriage equality in their lawbooks because of the 2015 jurisprudence ruling, and there are 12 (or possibly 13, depending on Quintana Roo) that have not done so.

For more detail and all links, see my article Mexico's Wild Ride to Marriage Equality.

Tuesday, December 14, 2021

LGBT Antidiscrimination Laws in the United States

National Equality March, Washington, D.C., October 11, 2009. Photo by Rex Wockner

Last update: June 15, 2020

On June 15, 2020, the U.S. Supreme Court banned discrimination in employment based on sexual orientation or gender identity, saying LGBT people are protected by the 1964 Civil Rights Act's ban on workplace sex discrimination.

The 6-3 decision, written by Trump appointee Justice Neil Gorsuch, said: "An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII [of the Civil Rights Act] forbids."

Prior to the Supreme Court ruling, job discrimination based on sexual orientation was banned in only 23 of the 50 states and two of the five territories, under state and territory law, and in one more state under a federal appeals court ruling. And job discrimination based on gender identity was banned in 22 states and two territories, under state and territory law, and in four more states under a federal appeals court ruling.

Laws in states and territories

Employment discrimination based on sexual orientation or gender identity is banned nationwide by the Supreme Court ruling. LGBT people have additional protections, in the areas of housing and public accommodations, in 23 states.

Twenty-one states prohibit discrimination based on sexual orientation and gender identity in employment, housing and public accommodations: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington. So does the federal district, Washington, D.C.

Wisconsin prohibits discrimination based on sexual orientation but not gender identity in employment, housing and public accommodations. Utah prohibits discrimination based on sexual orientation and gender identity in employment and housing but not in public accommodations. Guam and Puerto Rico (U.S. territories) also prohibited discrimination based on sexual orientation and gender identity in employment before the nationwide Supreme Court ruling.

In states with no sexual-orientation or gender-identity protections in the remaining areas of housing and public accommodations, it is common to find protections at the municipal level in large cities and university towns. Local nondiscrimination ordinances, however, sometimes do not have the teeth of state or federal laws.