Marriage equality is now effectively a legal reality across the entire country of Mexico. As the New York Times described it, this threshold was crossed with “little fanfare,” and there are still technically some hurdles for same-sex couples to marry. Nevertheless, it is now possible for same-sex couples to marry in any state in the country and have their marriage recognized.
The reason that this shift didn’t result in a huge momentous newsflash — as will likely happen with the U.S. Supreme Court this month — is because it’s been happening in a few tiny steps over many years and many decisions. Unlike the U.S. Supreme Court, the Mexican Supreme Court is not empowered to overturn a set of laws in one fell swoop. Instead, the legal reality of marriage equality has creeped along over several small steps.
Mexico City, for example, has had marriage equality since the Federal District’s Legislative Assembly passed same-sex marriage into law in late 2009. That was the first marriage equality law in all of Latin America. Only one state, Coahuila, offers full marriage equality — legislation that passed just last year. Over that period of time, though, the Supreme Court of Mexico has been repeatedly ruling for marriage equality.
For example, the Court upheld Mexico City’s law as constitution in 2010. Then, it ruled in 2012 that three same-sex couples could marry. Then in 2014, it ruled that same-sex couples must have equal access to social security benefits. Then, once again this month, the Court ruled that it’s unconstitutional for Mexican states to ban same-sex marriages.
In Mexico, however, that doesn’t immediately invalidate the state bans on same-sex marriage that are still on the books. The decision is a “jurisprudential thesis,” which means it only dictates how other judges must interpret laws. Unlike the U.S., Mexico does not have the same tradition of simply not enforcing laws that the Court has ruled are unconstitutional. What this will likely look like is that a state could still deny a same-sex couple a marriage license, but that couple could then a seek an injunction from a district judge and the judge would be obligated to grant it. Thus, every same-sex couple in Mexico can now obtain a valid marriage license, but they have to follow that extra step. Eventually, enough of those injunctions will be compiled to ask the Court for yet another ruling that would order the states to rewrite their laws.
Following Ireland’s successful referendum last month, Mexico becomes the 21st country to have marriage equality nationwide, leaving the U.S. as the only country that only allows same-sex marriage in some jurisdictions but not all.