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American Bar Association - Defending Liberty, Pursuing Justice

FALL 2010

Vol. 7, No. 1

FAMILY LAW

 

Mexico ’s Supreme Court Orders States to Recognize Same-Sex Marriages and Adoptions of Minors by Such Couples

By Ignacio Pinto-Leon

Earlier in August of this year, Mexico’s highest court, the Suprema Corte de Justicia de la Nación (Supreme Court of Justice of the Nation), paved the road to all–states recognition of same–sex marriages and adoptions of minors made by such married couples. From now on, validly executed marriages and adoptions in Mexico City—either by same or different sex couples—shall be recognized as valid in all states of the country.

Currently, only the Federal District (Mexico City) performs same–sex marriages—and only one state (Coahuila) and the Federal District provides for same–sex civil unions. But thanks to a 9–2 decision by the Supreme Court, all 31 states of Mexico have to give full effects to such marriages and adoptions, due in part to Mexico’s Full Faith & Credit Clause of article 121.IV of the Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the Mexican United States); the Court also based its decision on the equal rights clause of Mexico’s Constitution.

The Supreme Court’s opinion is still to be published—but the text is now available on its webpage; the debates were transmitted live via web and cable TV and closely followed by the public and press, and the transcripts of the debates are available at the Mexico’s Supreme Court’s website.

The case came to the Supreme Court of Mexico via constitutional challenge made by the Procuraduría General de la República (Mexico’s Attorney General Office) to amendments to the local Civil Code and other laws of Mexico City enacted by the Assembly of Representatives of the Federal District—the local legislative body for Mexico City. The Attorney General alleged that the new law violated the legislature’s duty to protect families, failed to protect the children’s best interest and attacked federalism. All arguments were found invalid in due course by the Supreme Court.

Mexico’s Suprema Corte made a direct interpretation of article 121.IV – Full Faith & Credit Clause – of Mexico’s Constitution. The Mexican version of the Full Faith & Credit Clause is more detailed and extended than the one in article IV.1  of the U.S. Constitution as interpreted by U.S. courts to date.

Article 121.IV of the Mexican Constitution establishes that “[all] acts related to the civil status [of individuals] executed in accordance to the laws of one state shall be valid in the others.” Marriage and adoptions are clearly acts of such nature.

[ On a note irrelevant to this article but crucial to attorneys licensed to practice in Mexico (as myself), article 121 also command states to recognize professional titles and licenses issued validly in any state or Mexico City: this nicety of the Mexican constitution means once a lawyer – and other professionals – are admitted to one jurisdiction, we’re admitted to all!]

The Supreme Court held—in a legally–impeccable argument—that this constitutional mandate extends to and includes same–sex marriages and adoption of minors by same–sex married couples, therefore ordering states to recognize such acts if validly executed in Mexico City, just as if celebrated within their territory. The lack of similar marriages or adoptions in a particular state was not to be an obstacle to their recognition.

The argument used by the Supreme Court in Mexico is similar to those advanced by many in the United States, such as Harvard Professor Joseph Singer and others in the context of the Full Faith & Credit clause of article IV.1 of the U.S. Constitution. It will ultimately be up to the American Supreme Court to define whether the Full Faith & Credit compels all states within the U.S. to give legal effects to same-sex marriages executed in one of the states that allow it. If they do so, it may probably happen in similar terms to those set up by their Mexican counterpart in the instant case.

The Supreme Court of Mexico got it right on its interpretation of the Mexican Full Faith & Credit clause of its Constitution. The amended Civil Code of the Federal District provides for same–sex marriages and allows same–sex married couples to adopt minors. States consequently have an obligation to recognize and give full effects to such marriages and adoptions within their territory – regardless of their particular position on the issue. And Mexico City’s legislature got it right too by granting equal rights to same–sex couples in marriage and adoption matters.

Ignacio Pinto-Leon is an attorney licensed to practice law in Mexico and New York. He is founder and director of JurisMex Corp., a Houston, Texas, firm providing legal assistance and expert testimony in Mexican law for clients and law firms in the United States; he may be reached at ignacio.pinto@jurismex.com .

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