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Mexico Supreme Court cites U.S. Supreme Court cases in same-sex marriage ruling

Wednesday, February 20, 2013
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MEXICO CITY — In a historic and unanimous decision Monday, Mexico’s Supreme Court ruled that denying same-sex couples in the Mexican State of Oaxaca the right to marry is unconstitutionally discriminatory, based in part on two significant U.S. Supreme Court cases.

Justice Arturo Zaldívar Lelo de Larrea cited the 1967 case Loving v. Virginia, the U.S. Supreme Court decision that ruled that Virginia’s law banning interracial marriages, based solely on racial classifications, violated the Equal Protection and Due Process clauses of the Fourteenth Amendment of the US Constitution.

Lelo de Larrea also cited the 1954 case Brown v. Board of Education of Topeka, which ruled that laws requiring or permitting racial segregation in public schools also violated the Fourteenth Amendment’s Equal Protection clause.

Lelo de Larrea and his fellow jurists compared the racial discrimination in the U.S. cases to the discriminatory nature of same-sex marriage bans, holding that such laws discriminate by depriving same-sex couples both of the right to marry and of the right to marital benefits.

Moreover, the court stated that, under such laws, the children of same-sex couples face discrimination by receiving treatment different from that received by children of heterosexual couples.

In its ruling the Mexican high court’s mandates that in accordance with principles of equity, the Oaxaca civil code must be written to describe marriage as between two people.

International legal analysts noted that the ruling makes a strong statement about Mexican law’s treatment of equal protection guarantees.

Lelo de Larrea wrote [Translated from 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 U.S. 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.

The ruling had been anticipated since the court announced December 5, 2012, that it would order the state of Oaxaca to recognize the marriages of the three same-sex couples that had filed suit.

According to court observers, the ruling will have only a small immediate impact in Mexico as legal technicalities will limit the impact solely to the three couples who brought the initial legal case. 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.

Unlike a U.S. Supreme Court ruling, it takes more than one ruling from Mexico’s Supreme Court to strike down a law.

The country’s legal system mandates that the high court must rule the same way in five separate cases before a law is overturned. This ruling concerns three separate cases; it will take two more for any same-sex couple in Oaxaca to be able to wed easily, and then the process may have to be repeated in other states.

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