Formal Opinion of Mexican Supreme Court Rules Bans On Gay Marriage Are Unconstitutional

 

Back on December 5, 2012, the Mexican Supreme Court struck down a ban on same-sex marriages in the Mexican state of Oaxaca.  Today, the Court issued its full formal opinion which was sweeping in scope and what makes the ruling even more stunning, the Mexican Court cited past U.S. Supreme Court rulings such as Loving v. Virginia and Brown v. Board of Education to justify its sweeping ruling.  While in no way binding on the U.S. Supreme Court as it considers the DOMA and Proposition 8 appeals before it, the Mexican ruling certainly lays out a road map as to why the American tribunal should reach a similar conclusion and end the religious based discrimination against same sex couples nationwide.  BuzzFeed has details on the formal opinion released today.  Here are some excerpts:

Denying same-sex couples the right to marry is unconstitutionally discriminatory, Mexico's Supreme Court announced in a sweeping ruling made public Monday.

The ruling not only makes a strong statement about Mexican law's treatment of equal protection guarantees, it also relies heavily on civil rights rulings handed down by the U.S. Supreme Court. Although several justices of the American court take pride in not caring what foreign courts say, any who read the Mexican decision will find the court makes an impassioned case for the United States to follow its lead.

Writing for a unanimous tribunal, Minister Arturo Zaldívar Lelo de Larrea invoked the U.S. cases Loving v. Virginia and Brown v. Board of Education to argue for marriage equality in a way that American activists would be overjoyed to see from a justice of the U.S. Supreme Court.

On Loving v. Virginia, which struck down laws against interracial marriage in 1967, Zaldívar wrote (translated from its original Spanish):

The historical disadvantages that homosexuals have suffered have been well recognized and documented: public harassment, verbal abuse, discrimination in their employment and in access to certain services, in addition to their exclusion to some aspects of public life. In this sense … when they are denied access to marriage it creates an analogy with the discrimination that interracial couples suffered in another era. In the celebrated case Loving v. Virginia, the United States Supreme Court argued that "restricting marriage rights as belonging to one race or another is incompatible with the equal protection clause" under the US constitution. In connection with this analogy, it can be said that the normative power of marriage is worth little if it does grant the possibility to marry the person one chooses.

Zaldívar also wrote that it would also be contrary to the principles of the 1954 school desegregation case Brown v. Board of Education to restrict same-sex couples to civil unions or domestic partnerships while barring them from marriage.

It can be said that the [other] models for recognition of same-sex couples, even if the only difference with marriage be the name given to both types of institutions, are inherently discriminatory because the constitute a regime of "separate but equal." Like racial segregation, founded on the unacceptable idea of white supremacy, the exclusion of homosexual couples from marriage also is based on prejudice that historically has existed against homosexuals. Their exclusion from the institution of marriage perpetuates the notion that same-sex couples are less worthy of recognition than heterosexuals, offending their dignity as people.

The court broke important ground in the ruling by invoking another precedent from international law, a ruling handed down in 2012 by the Inter-American Court of Human Rights, Karen Atala Riffo y Niños v. Chile. Most Latin American countries recognize the jurisdiction of the Inter-American Court, which is the legal arm of the Organization of American States. (The United States and Canada do not submit to the court's jurisdiction.)

The Mexican marriage case was the first test in any Latin American court of whether the decision in Atala's case can be applied to marriage rights. The court held that it could, writing that Atala requires the rejection of "a regime of separate-but-equal marriage."

Despite its breadth, this ruling will have only a small immediate impact in Mexico. Technicalities of the country's legal system mean that only the three couples who brought this case will be able to marry right away. Mexico City is still the only jurisdiction inside Mexico where marriage between same-sex couples is fully legal; several more lawsuits will have to be brought before that right is available nationwide.

As I have noted a number of times, who would have believed a decade ago that countries in South America and Mexico would be taking a stronger stand in rejecting discrimination and the concept of "separate but equal" than the United States of America.  It speaks volumes about what the Christofascists and undeserved deference to religion have done to this nation.  It is down right embarassing.