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COLUMN: Mexican court rules in favor of gays

Political Profundities

Published: Tuesday, February 26, 2013

Updated: Tuesday, February 26, 2013 14:02

 

The Mexican Supreme Court says gay marriage must be legal under the U.S. Constitution.

I know. Change one word and I’ll keep reading, right? Actually, though, you should keep reading if you are at all interested in the Mexican legal system, the American legal system, or in the civil rights movement. If you are not interested, then you should probably burn this paper without delay and without concern for the safety of yourself or those around you, because what I am about to say may sear away the very essence of your being from the membranous division between your soul and the physical world, damning at least one of your ears for all eternity, depending on how many ears you are already deaf in. The Mexican Supreme Court has legalized gay marriage for all of Mexico.

Still have an undamned ear? It probably has something to do with the fact that wasn’t the shocking part. The shocking part is that gay marriage is not legal in Mexico, but gay marriage has been legalized in Mexico. And no, this has nothing to do with the executive branch trodding on the toes of the judicial branch. It really is a paradox, a failure of logic, of rationality. This proves all human knowledge is meaningless and useless. There is nothing. And this is the point where you start to go insane and think your ears have been damned.

Actually, there is a perfectly rational explanation for all this, which can be obtained by considering Mexican constitutional law, which operates a bit — read a lot — different from U.S. Constitutional law. In the United States, laws are made by the legislative branch, enforced by the executive branch and broken by the judicial branch. Then they are either ignored or mended by higher courts in the judicial branch. Once the judges are done with it, an unconstitutional law can be taken back to the legislature and mended by means of a constitutional amendment — which almost never happens — or it can be taken to the executive branch to be mended by means of ignoring the judicial branch’s ruling and by irreparably damaging the very fabric of a constitutional democracy — which never happens.

All of this is the same in the Mexican system, but that is where some of the similarity ends. In the United States, when a state law is declared unconstitutional for some reason, that reasoning becomes a part of constitutional interpretation forever. The case establishes some principle. In theory, all laws violating that principle are presumed to be unconstitutional and unenforceable. If the executive branch of some other state tries to continue enforcing the law, it will be quickly struck down by a district court judge citing the Supreme Court decision, and the higher courts refuse to hear the case again.

In Mexico, however, it is not that simple. When their Supreme Court interprets the constitution in a certain way, striking down some state law, that interpretation does not automatically become standard. The case does not gain broad applicability — applicability beyond the specific state and law being considered — until the principle has been utilized with regards to five different Mexican states.

Thus, the Mexican Supreme Court eloquently cited U.S. case history, made a passionate plea for LGBT marriage equality, established it as requisite based on Mexico’s equal protection clause and actively used that interpretation to strike down a state law prohibiting gay marriage, setting the groundwork for full nationwide marriage equality in the coming years. Yet marriage equality has yet to truly become a part of Mexico’s constitutional equal protection clause.

Of course, the most interesting piece of this story is not what will happen in Mexico. It is what will happen in the United States because of this that truly interests me. The Mexican Supreme Court arrived at its decision by considering the reasoning used in Loving vs. Virginia, the landmark U.S. Supreme Court case, which established anti-misogyny laws violate the equal protection clause of the Fourteenth Amendment by denying the right of marriage to interracial couples. It follows then that denying marriage to individuals solely because of their gender also violates the equal protection clause. The U.S. Supreme Court has a long history of ignoring the rulings of international tribunals, yet the Mexican Supreme Court’s opinion has to count for at least as much as an amicus curiae brief from the Republican Governors’ Association. It will be interesting to see how the high court takes this. At the very least, proponents of marriage equality now have a truly significant neutral outside actor siding with them.

 

 

– Peter Daines is a senior in the political science department. He has been involved in the leadership of multicultural and diversity clubs such as the Latino Student Union and Love is for Everyone. Send comments and questions to pdaines33@gmail.com.

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