Mexico's high court strikes Oaxaca gay marriage ban
Mexico's Supreme Court issued a ruling on Monday that a law in the Mexican state of Oaxaca banning same-sex marriage was unconstitutional.
Some people might greet that news with a shrug. After all, Mexico is not the United States. A ruling that a law violates its constitution wouldn't have any bearing on the U.S. since Mexico's judicial system has no jurisdiction over the U.S. In addition, the court was basing its ruling on a state law in comparison to the Mexican constitution.
According to The Washington Blade, a gay weekly newspaper in Washington, D.C., the court cited examples in rulings from the U.S. Supreme Court to reach its decision. Specifically, the court reviewed Loving v. Virginia, which invalidated state laws that banned interracial marriages and Brown v. Board of Education, which formally cast aside the principle of separate but equal.
"That discrimination that homosexual couples have suffered when they are denied access to marriage is analogous with the discrimination suffered by interracial couples," the court wrote in citing Loving within their 56-page opinion, issued just weeks before opening arguments against California's Proposition 8, a law that banned same-sex marriage in 2008. District Court Judge Vaughn Walker struck down Proposition 8 in a ruling on Aug. 4, 2010. The 9th Circuit Court of Appeals upheld Walker's decision Feb. 7, 2011.
Mexico's highest court also cited Loving in pointing out that American justices found Virginia's law "incompatible" with the Equal Protection Clause of the 14th Amendment. That amendment is often called "the second Bill of Rights" by constitutional scholars because it extends many of the prohibitions that Congress, the President or the Supreme Court face to the states.
"The normative power of marriage is of little use if it does not give the possibility to marry the person that one chooses," the court wrote.
What effect will this verdict have on marriage equality in the United States? Officially, it may have very little. After all, the Mexican court's jurisdiction is limited to its own borders and the ruling applied only to Oaxaca's law. The U.S. court certainly isn't bound to follow precedents established in a foreign country, except for any laws passed in Great Britain prior to the U.S. Independence Day.
Symbolically, however, the implications of the ruling may greatly exceed their formal reach. The court's decision to cite the U.S. verdicts suggests that a court system with an outsider's point of view has studied the issues our court system are grappling with and have decided that our own laws should be interpreted to allow a person to marry the person he or she chooses.
The court's citing Brown goes even further beyond simply finding bans on same-sex marriage "incompatible" with the Equal Protection Clause. That aspect of Monday's ruling remonstrates that civil unions with fewer legal rights and protections than marriages have a similar effect to providing separate schools or drinking fountains for "white" or "colored" people during segregation.
Some observers might wonder why Mexico's court is citing U.S. Supreme Court rulings in an opinion involving Mexican law.
"They do it when in our country there is no previous rulings on the subject," said lawyer Alex Alí Méndez Díaz, in explaining why the Mexican court cited American court rulings. Méndez filed lawsuits on behalf of two same-sex couples and requested redress for a third through that country's writ of amparo, which is a request for protection of constitutional rights, because of the state's ban against same-sex marriage.
"These rulings are the first at the national level that support the topics in the way in which we had planned," Méndez said.
People who argue for marriage equality often say that they will be on the "right side of history" years from now. They point to the attitudes that many of us now have toward our forefathers who protested against civil rights for blacks, women, and other disadvantaged minorities.
Opinion polls have shown time and time again in recent years that attitudes toward the gay community have changed. In 1993, allowing gays in the military was the controversial issue of the day. Within 15 years, the majority of people in the U.S. supported allowing gays to serve openly. In 2000, Vermont's approval of civil unions was considered radical.
A staff editorial that year by The Diamondback, the University of Maryland student newspaper arguing that Vermont's civil union law didn't go far enough and should have championed same-sex marriage caused a few waves even though some called the campus a very liberal one. Full disclosure: I was a member of The Diamondback's editorial staff at the time and I wrote the editorial.
By 2004, a pundit during the election campaign between then-President George W. Bush and then-Sen. John Kerry (D-Mass.) called civil unions "the moderate position." By 2011, Gallup reported that a majority of people in the U.S. supported same-sex marriage.
Clearly, attitudes in the U.S. have already evolved dramatically and continue to evolve. President Barack Obama waited until his fourth year in office before finally supporting marriage equality. Former Maryland state Del. Justin Ross (D-Prince George's County) originally opposed same-sex marriage, but he pushed hard for Maryland to approve a civil marriage law in 2012.
The law passed in the General Assembly and was signed by Gov. Martin O'Malley, also a Democrat, but opponents managed to get enough petitions signed to force the issue on the November ballot. However, an act that previously served as a death knell for same-sex marriage laws did not stop Maryland, Maine or Washington state voters from approving marriage equality in their states.
There's no way to know when the tide will turn and will allow all Americans the freedom to marry whom they choose, but the tide definitely has turned in favor of marriage equality. And that tide's turning received at least a symbolic push from south of the border.