Mexico's High Court Supports Mexico City's Gay-Marriage Law, Upholds Right of Gay Couples in Capital to Adopt Children

By Navarro, Carlos | SourceMex Economic News & Analysis on Mexico, August 25, 2010 | Go to article overview

Mexico's High Court Supports Mexico City's Gay-Marriage Law, Upholds Right of Gay Couples in Capital to Adopt Children


Navarro, Carlos, SourceMex Economic News & Analysis on Mexico


Mexico's high court (Suprema Corte de Justicia de la Nacion, SCJN) took a major step toward legitimizing same-gender marriages in Mexico with two separate decisions handed down in August. The first ruling, announced Aug. 5, reaffirms Mexico City's right to allow gay marriage, while the second decision, handed down Aug. 16, upholds the Mexico City government's right to allow gay and lesbian couples to adopt children. The court made the ruling in response to a legal challenge from the federal Procuradurfa General de la Republica (PGR), which argued that the Mexico City law, approved earlier this year was unconstitutional because it threatened the institution of the familySourceMex, February 17, 2010.

States must recognize Mexico City marriages, adoptions

The two rulings, approved by an overwhelming margin, apply directly to Mexico City but also stipulate that other states must recognize any marriages or adoptions that take place in the Mexican capital. Other states were given the freedom to decide on their own whether to legalize gay and lesbian marriages.

In issuing the rulings, the court disputed the objections raised by President Felipe Calderon's administration and the Mexican Catholic Church that gay marriages were anti-family. "It does not appear to me to be unconstitutional," Justice Jose de Jesus Gudino Pelayo said following the court's 8-2 decision to uphold Mexico City's law. "The concept of the family established in the Constitution...is an open concept."

Furthermore, justices said a primary consideration was to preserve diversity and tolerance in Mexico. "Our Constitution does not establish a concept of marriage," said Justice Arturo Zaldfvar.

Justice Jose Fernando Franco argued that procreation is not an essential element of marriage. "Those who wish to procreate are free to do so, not only within marriage but in any way they see best, and this happens and can happen in heterosexual marriages, and those that are not, or among single persons," said Franco.

The two dissenters were Chief Justice Guillermo Ortiz Mayagoitia and Justice Salvador Aguirre Anguiano. Both argued that marriage, defined as a union between a man and a woman, was an institution that preceded the Mexican Constitution. Aguirre also argued that uniformity was necessary to preserve the legitimacy of a marriage.

The court's decision that upholds the rights of gay couples to adopt children in Mexico City was also approved by an overwhelming margin. As was the case with same-gender marriage, the justices applied the ruling only to Mexico City but also directed all other states to recognize all adoptions that take place in the Federal District. Justice Sergio Valls, who introduced the court's discussion on the right of gay couples to adopt children, said Article 121 of the Mexican Constitution stipulates that legal acts that occur in one state must be recognized by all the other states.

With the SCJN decision to uphold same-gender marriages, Mexico becomes the second country to at least partially put gay couples on par with their heterosexual counterparts. In July of this year, the Argentine Congress approved a sweeping law allowing gay couples to marry nationwide NotiSur, July 30, 2010. Uruguay allows gay couples who have entered into a civil union to adopt children, but the country does not yet allow same-gender marriages.

The center-left Partido de la Revolucion Democratica (PRD), led by Mayor Marcelo Ebrard, was generally responsible for passing the gay-marriage legislation in Mexico City, and many local legislators around the country who favor the unions are members of the party. Mexico City authorities said 320 couples have taken advantage of the law since it went into effect in February, including 173 weddings between men and 147 between women.

States have jurisdiction within own borders

The SCJN ruling gives states the option to decide whether to allow same-gender marriages within their own borders, which has prompted heated debate around the country. …

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