December 7, 2012
By Jacob Combs
Yesterday, I wrote about some great news out of Mexico, with the Supreme Court of Justice of the Nation (SCJN) ruling in favor of three same-sex couples in the southwestern state of Oaxaca seeking the right to marry. After the decision was announced, there was some question about the scope and effect of the ruling, so I figured it was worth revisiting the story (with another day’s worth of information) to clarify what exactly it means.
Michael Lavers of the Washington Blade wrote a great piece yesterday with some good background details on the decision. The suits filed on behalf of the three couples sought what is called an “amparo” in the Mexican legal system, which is essentially a request to have a court require local authorities to protect the plaintiffs’ constitutional rights. To my reading, these amparos are essentially human rights complaints that can be brought against local laws or acts by local authorities. The biggest caveat, though, is that an amparo only apples to the specific plaintiffs and the authorities against which they’ve brought the complaint.
More importantly, each individual case bringing an amparo complaint is called a tesis (thesis), and the Mexican constitutional system requires similar rulings in five tesis to crate what is called a jurisprudencia, or precedent. A jurisprudencia would stand as binding precedent on lower courts–but only in the state in which they are brought, the AP notes.
The decisions in the Oaxacan cases mean there are already three tesis on the marriage equality issue now, so it will take two more to obtain a jurisprudencia binding on all couples in Oaxaca. Additional cases would need to be brought in Mexico’s other states. Still, Alex Alí Méndez Díaz, who represented the three couples, told the Blade, “These cases set a precedent that can be invoked in any other state in Mexico. While it is not obligatory for those who must resolve these new cases, there is a high possibility that the result will be the same as what we have obtained in Oaxaca.”
As former Politico reporter J. Lester Feder wrote on his blog After Marriage, one of the Supreme Court justices (technically called ministers) who ruled in the case told CNN en Español that the court’s ruling could have a ripple effect across Mexico in a matter of ‘months’:
“The three cases are effective with respect to the state of Oaxaca. Nevertheless, the position that we have in the Supreme Court as the nation’s highest court, it is foreseeable that if other people of other [states] contesting a code [similar to Oaxaca's], the court will reiterate its criteria and that, with the passage of months, will create jurisprudencia that will become binding. While the Supreme Court continues to maintain this criteria, legislation of different states of our federation can be challenged and declared unconstitutional as happened today.”
Also this week, in Colombia, a marriage equality bill passed the first legislative hurdle on its way to becoming a law. A measure in Uruguay passed out of committee last week, and could be voted in the Chamber of Deputies on December 11. The Uruguayan Senate will likely not consider the bill until next year.
And, of course, here in the U.S., we eagerly await possible news from the Supreme Court today regarding the marriage equality cases. Stay tuned!