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  WINDY CITY TIMES

Mexico's Wild Ride to Marriage Equality
by Rex Wockner
2016-05-18

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Mexico is the current hotspot of the marriage-equality movement and requires extensive treatment to wrap one's head around what's happening.

As was the case in the U.S., Mexico's legalization of same-sex marriage is proceeding state by state but unlike in the U.S., there is no possibility for a single ruling from the highest court that will overturn same-sex marriage bans nationwide. Even the Supreme Court of Justice of the Nation (SCJN) will have to go state by state.

Mexico has 31 states and 1 federal district. Marriage equality has arrived in the federal district (Mexico City) and in eight states — via three different routes: Legislative legalization, a Supreme Court ruling, and state administrative decisions to stop enforcing their ban. Those states are:

— Campeche (legislative)

— Chihuahua (administrative)

— Coahuila (legislative)

— Guerrero (administrative)

— Jalisco (SCJN ruling)

— Michoacan (legislative)

— Nayarit (legislative)

— Quintana Roo (administrative)

+ Mexico City aka Distrito Federal (legislative)

+ Queretaro, the capital city of Queretaro state (administrative)

- Sonora was briefly on this list (www.uniobregon.com/noticias/reportajesespeciales/411289/da-registro-civil-apertura-a-matrimonios-entre-personas-del-mismo-sexo.html ), but now it's not ( www.eldiariodesonora.com .mx/notas.php?nota=71971 .)

But it's all much more interesting than just this. Same-sex couples actually can get married right now in Mexico's other 23 states as well, as a result of a June 3, 2015, ruling by the SCJN's First Chamber. But it's complicated.

What the ruling said is that any same-sex couple who wants to marry can go to a federal judge and seek an injunction (known as an amparo) against the Civil Registry allowing them to marry — and the SCJN ordered that judges must issue the injunction. Groups of couples also can seek a "collective amparo."

This process works, and couples do use it, but it's slow and expensive. A couple needs a month or more of time and the equivalent of around $1,000 U.S. to pay a lawyer to help them.

As Mexico's marriage-equality movement barrels ahead, more states will see the freedom to marry (without couples having to get an amparo), probably several more states in the near future. In each state, it will happen one of four ways:

1. The state congress will legalize same-sex marriage.

2. The state government will decide to stop enforcing its ban on same-sex marriage. (While this gets the job done, it could be reversed by a new administration, so it's not activists' preferred route.)

3. The Supreme Court will kill a state's ban via the surprising route that happened in Jalisco, and which may happen in Chiapas and Puebla, as well.

Here's how that works. When any law is passed in Mexico and takes effect, there is a 30-day window for specific governmental entities to challenge that law with an "action of unconstitutionality" filed with the full Supreme Court. What Jalisco did is change the legal age for marriage and, in the process, in one sentence of the revised law, it mentioned that marriage is man-woman. This qualified that man-woman language as a "new" law that could be challenged during the 30 days after it took effect. The National Human Rights Commission filed an action of unconstitutionality against the language and the SCJN struck down Jalisco's ban on same-sex marriage in a unanimous ruling with immediate effect.

The states of Chiapas and Puebla also recently altered their marriage laws — again not specifically having to do with marriage being between a man and a woman — and made the same "mistake" (or perhaps deliberate decision) that Jalisco did. They mentioned in the revised law that marriage is man-woman. Lawsuits were quickly filed with the Supreme Court and are pending.

4. A grand project of the organization Marriage Equality Mexico — a project that led to that 2015 SCJN ruling telling judges nationwide that they had to approve all marriage-equality amperes — is highly likely to bear fruit state by state. It's not easy to understand, so let's keep it simple:

When one of Mexico's 253 second-level federal appeals courts or the First Chamber of the federal Supreme Court rules that an existing law is unconstitutional in five separate amparo rulings in a row, and uses identical language in each ruling, that creates legal "jurisprudence" against that law — and jurisprudence can then be used to force a state congress to eliminate the law — in this case, a ban on same-sex marriage.

It's a strange process, for sure, but it's ongoing nationwide and several states are well on the way to arriving at the magic number of five identical rulings in a row from higher-level courts. When a state gets there, the Supreme Court then has the power to move directly against a state's congress/legislature, and surely will do so.

The mastermind of this massive undertaking is a young activist lawyer named Alex Ali Mendez Diaz and he works on the project with cooperating local lawyers nationwide.

And that's Mexico's march toward marriage equality in a nutshell!

But one last thing: Why is all this snowballing? Mostly, it's because when the federal Supreme Court's First Chamber issued that 2015 ruling that requires all judges to issue an amparo injunction to any same-sex couple that wants to marry, the Supreme Court also informed the nation that any ban on same-sex marriage is unconstitutional and is ultimately doomed.

So, the writing is on the wall and politicians, human-rights officials and judges all know it and are falling in line.

UPDATE: On May 17, 2016, Mexican President Enrique Peña Nieto proposed amending Mexico's Constitution to make marriage equality the law of the land and sent his proposal to Congress. Amending the Constitution requires a two-thirds vote by members present the day of the vote in the Chamber of Deputies and the Senate of the Republic — followed by ratification by the state congresses of at least 16 of Mexico's 31 states. The Federal District (Mexico City) doesn't get to vote on ratification. It is not out of the question that this all could happen. At the same time, the bombshell announcement makes some Mexican marriage-equality activists nervous that the undertaking could backfire and lead to a constitutional definition of marriage as man-woman-only, undoing everything you've read here. Never a dull moment in Mexico's wild ride to marriage equality.


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