Vous êtes sur la page 1sur 21

Same Sex Marriage in Mexico and the United States: A Difference in Federal Approaches

Shaun Alvis
Mexican Public Law
November 30, 2013









One of the greatest debates currently raging in both the United States and Mexico is the
battle over marriage equality for homosexual couples.
1
This debate, while intense in both
countries, has taken on very different contours due to the massive differences between Mexican
and American federalist systems. In fact, the gay marriage debate helps shine light on a
somewhat vexing issue facing those who study Mexican law, just how federal is the Mexican
system.
2

This paper will examine the histories of gay marriage in both Mexico and the United
States, with a particular focus on the implications for federalism in both. First, a brief overview
of federalism and how it theoretically operates in both countries is appropriate.
Mexican Federalism
Federalism is defined as the distribution of power in an organization (as a government)
between a central authority and the constituent units.
3
The Mexican Constitution is founded on
seven fundamental ideals, one of which is the idea of Mexico as a federal system.
4
Perhaps
uniquely amongst modern federal states in that its federal units were developed from a
centralized state.
5


1
See "Propuesta Para Legalizar Bodas Gay En Todo Mxico," Eldiariony.com, accessed December 14, 2013,
http://www.eldiariony.com/bodas_gay_mexico and Lisa Maria Garza, "Federal Judge Sets Hearing for Texas Same-
sex Marriage Case," Reuters, December 11, 2013, accessed December 13, 2013,
http://www.reuters.com/article/2013/12/12/us-usa-texas-marriage-idUSBRE9BB03420131212.
2
David Shirk, "New Federalism in Mexico," Fronterizo, July 1999, 2, accessed December 12, 2013,
http://www.sandiegodialogue.org/pdfs/newfed.pdf.
3
Philip Gove, Merriam-Webster, s.v. "Federalism," accessed December 13, 2013, http://www.merriam-
webster.com/dictionary/federalism.
4
Francisco Avalos, The Mexican Legal System (Getzville, NY: W.S. Hein, 2000), 5.
5
For instance, the United States, Canada, Australia, India, and Russia began with individual states that federated
into a single country. Even the UK, which has recently taken on a federal character, has units that correspond to
historically independent states.
Mexico at the time of independence was a heavily centralized state.
6
While the Colony of
New Spain was divided into various provinces, intendancies, and governments, the
overwhelming locus of governmental power was located in the central colonial administration in
Mexico City.
7
The initial plans for Mexican governance following independence retained this
centralized model.
8
Most of the Revolutionary constitutions
9
retained centralism and were far
more heavily influenced by then current trends in Spanish constitutionalism
10
as opposed to the
American constitution and its federal order.
11

Immediately post-Independence, with the Plan of Iguala and the First Mexican Empire,
were assuredly not federal in character, practice, or theory.
12
The rebellion against Iturbide
organized around Santa Anna, led to a new federalist movement in Mexico.
13
The Plan de Casa
Mata, while not explicitly calling for the creation of a federal state, certainly led down that path
with its call for the province of Vera Cruz to assume complete control over its territorial affairs
during the period of chaos in Mexico City.
14
There was an implicit order to other provinces to
follow suit, which they all promptly did.
15

After the final overthrow of Iturbide and his Empire, the victorious rebels set out to create
a new constitutional order.
16
They promptly split into two opposing groups, those who favored a

6
William H. Beezley and Michael Carl. Meyer, The Oxford History of Mexico(New York: Oxford Univ. Press,
2010), 287.
7
Beezley, 113.
8
J. Lloyd Mecham, "The Origins of Federalism in Mexico," The Hispanic American Historical Review 18, no. 2
(May 1938): 164, http://www.jstor.org/stable/2507175.
9
For example, the Constitution of Apatzingn, which is considered by some scholars to be the best representation
of Revolutionary political thinking, features a highly centralized political system.
10
Which remained central, contrary to our current understanding of Spanish constitutional thought.
11
Mecham, 165.
12
Mecham, 166.
13
Id.
14
Mecham, 167.
15
Id.
16
Id.
federal state and those who wished to retain centrality.
17
The centralists were heavily associated
(to the point of being called Bourbonists) with those advocating a return to monarchy under the
Spanish Crown.
18
They felt that the federal state would allow for an easier return to monarchy in
the future.
19
These centralists initially compromised a majority in the new Congress and were
opposed by the federalists.
20
Most of the federalists drew their inspiration from the United States
though many had only an indistinct understanding of how American federalism actually
functioned.
21
Essentially fearing the ability of a dictator to dominate centralized states, the
federalists felt that a federal republic represented the best guarantor of freedom and individual
rights.
22
In May of 1823, a draft outline of a new constitution for Mexico began to take shape,
while it was ostensibly federal in character
23
but with provincial powers heavily circumscribed
and with little relation to the federal character of the United States.
24

This then represents the beginning of federalism
25
in Mexico, implicit vague orders and
unclear delineations of power something, which would hound the efforts at creating a federal
republic throughout the rest of Mexican history.
26
The chaotic history of Mexico during the 19
th

century resulted in a wide variety of governments. Most of which remained ostensibly federal in
character.
27
Following the Mexican Revolution of 1910, Mexico received a new constitution (at

17
Mecham, 167.
18
Mecham, 168.
19
Id.
20
Id.
21
To be fair, American federalism at this time was rather divided between ardent states rights fanatics and those
who favored a more powerful national government.
22
Mecham, 168.
23
Buttressed by a declaration by the Congress in June of 1823 that a federal republic had been adopted and that
therefore new elections for a new Congress were in order.
24
Mecham, 169-170.
25
Alternatively, as Mecham refers to it pseudo-federalism.
26
Mecham, 170.
27
With the exception of a brief return to centralization following the triumph of the conservatives in 1836 lasting
until the overthrow of Santa Anna in 1854. See Stephen Zamora, Mexican Law (Oxford: Oxford University Press,
2004), 22-23.
least in theory.)
28
This document was similar in many ways to the Mexican Constitution of 1857,
which had been Mexicos primary governing document in the latter half of the 19
th
century
including the long dictatorship of Diaz.
29

The Constitution of 1917 states that It is the will of the Mexican people to organize
themselves into a federal, democratic, representative Republic composed of Free and Sovereign
States.
30
The strength of the words associated with the states belies their relative weakness.
When one moves to Title V, which lays out the powers of the so-called Free and Sovereign
States, one is immediately struck, if coming from an American constitutional background, by
the relatively in depth treatment state powers get.
31
There is no equivalent Mexican clause to the
statement in the 10
th
Amendment that The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.
32
This lack of a clause specifically reserving power to the states implies a different
relationship between the states and the federal government. Without an explicit grant of powers
supposedly greater than or equal to those of the federal government, Mexicos states are free and
sovereign in name only.
Also important in Title V, particularly for the purpose of this paper, is Article 121, which
serves to outline what actions by other states a Mexican state has to recognize as valid.
33
Article
121 is quite comprehensive in setting out this relationship, while recognizing that state laws have

28
Victoria Rodriguez, "Recasting Federalism in Mexico," Publius: The Journal of Federalism 28, no. 1 (November
1998): 235, http://www.jstor.org/stable/3331017.
29
Rodriguez, 237.
30
Constitution of Mexico, Article 40. This paper shall exclusively use the translation available at:
http://www.oas.org/juridico/mla/en/mex/en_mex-int-text-const.pdf
31
Constitution of Mexico, Title V.
32
Constitution of the United States, Amendment X. Available at:
http://www.law.cornell.edu/constitution/tenth_amendment
33
Constitution of Mexico, Article 121.
no authority outside their state, many acts and records produced by other states are required to be
given validity in all other states.
34
Mexico does not appear to have a public policy exception for
this requirement, which would allow states to refuse to validate acts that run contra to their own
laws.
35
This lack of such an exception will be discussed in more detail infra.
Mexican federalism then is unique. Primarily because in so many ways it is not really
federalism. The Mexican States, while granted a grand sounding name and title, are in fact
without much power in the Mexican Federation. Moreover, historically speaking, Mexican
federalism developed in a unique and strange fashion. It would be interesting to see if Mexico
would have proclaimed itself federalist at all in fact, if not for the influence of its neighbor to the
North.
American Federalism: Powerful States, Weak Ties
American concepts of federalism loom large over any discussion of either Mexican or
other forms of federalism. In large part this is because America was really, the first large scale
attempt to organize a republican federation. As such, American federalism, while serving as the
template for many other countries, has a few idiosyncrasies and deficiencies that other countries
have dealt with more effectively.
A centralized American state was always a bit of a non-starter. The unique nature,
history, and government structures of the individual 13 colonies meant that a central state was
never likely to gain much support amongst either the elite or ordinary citizens.
36
While an
independent America was always likely to have a federalist nature, the nature of American

34
Id.
35
Id.
36
Christopher Collier and James Collier, "Alexander Hamilton and the British Model," in Decision in Philadelphia:
The Constitutional Convention of 1787(New York: Ballantine Books, 2007), 76-87.
federalism though underwent shifts and changes throughout the Revolutionary and immediately
post-Independence period.
37

The first American constitutional document, the Articles of Confederation, featured a
very strong version of federalism.
38
The Articles recognized that each state was to be sovereign
within the loose federal structure the Articles established.
39
In fact, the Articles were viewed less
as a document establishing a national government and more of an effort to create a firm league
amongst 13 sovereign and independent states.
40

This structure, while undoubtedly attractive to many, was wracked with massive
destabilizing problems due primarily to the utter inability of the federal government to impose
any type of order.
41
States had different currencies, different legal systems, and differing views
on financial obligations which made imposing a national order impossible.
42
This was
exacerbated by the inability of the national government to impose taxes.
43
While an attractive
proposition given that the Revolutionary War was essentially fought to free the colonists from
what they viewed as an unfair system of national taxation, in practice forcing the federal
government to rely on recalcitrant states for funding meant that the government never had any
money.
44


37
Ellis Katz, "American Federalism: Past, Present, and Future," Issues of Democracy, April 1998,
http://www.ucs.louisiana.edu/~ras2777/amgov/federalism.html.
38
Id.
39
Id.
40
Articles of Confederation, Article III.
http://hercules.gcsu.edu/~hedmonds/U.S.%20Constitution/Articles%20of%20Confederation.htm
41
Id.
42
Id.
43
Id.
44
Id.
These problems were coming to a head by the end of the 1780s.
45
The regime created by
the Articles was at risk of collapsing entirely leaving the newly independent colonies ripe for re-
conquest.
46
As such, all states (apart from Rhode Island)
47
sent delegations to Philadelphia to
draft a set of revisions to the Articles.
48
This would eventually lead to the scrapping of the
Articles altogether in favor of a new Constitution.
49
This new Constitution, while maintaining the
federal nature of the Republic, was notably different in how it distributed governmental power.
Rather than creating a federal government dependent on the states, it created two independent
but connected sets of government power.
50
By giving the federal government the power to tax
and regulate currency, the Framers ensured that the federal government could exist without being
completely reliant on the states.
51

Over the course of the 19
th
and 20
th
centuries, the balance of power in American
government shifted decisively from the states to the federal government.
52
By the end of Franklin
Delano Roosevelts presidency, federal power had unquestionably eclipsed that of the states but
the federal character of the nation remained.
53
This, in many ways, is because states are
recognized as having a general police power not held by the federal government.
54
Therefore, the
states are responsible for regulating many activities that fall outside of the purview of the federal
government.
55
Nevertheless, this power to regulate is somewhat restricted by Article IV.
56


45
Collier, 8.
46
Collier, 5-6.
47
Collier, 59.
48
Id.
49
Collier, 71.
50
Larry N. Gerston, American Federalism:A Concise Introduction (Armonk, NY: M.E. Sharpe, 2007), 2.
51
Collier, 252.
52
Katz.
53
Id.
54
D. Benjamin Barros, The Police Power and the Takings Clause, 58 U. Miami L. Rev. 471, 474 (2004.)
55
Id.
56
Constitution of the United States, Article IV.
According to Article IV, Section I states are required to give full faith and credit to the public
acts, records, and judicial proceedings of other States
57

This has the potential to be interpreted quite broadly, as for instance the rather extensive
Mexican equivalent in Article 121, but the Supreme Court of the United States has long
recognized a so called public policy exception to the Full Faith and Credit clause.
58
Under this
exception, states are not required to recognize judgments and records taken under laws, which
contravene their own public policy.
59
The idea of this exception is becoming more
controversial
60
, for instance, the South Carolina Supreme Court has recently ruled that it feels
there is no public policy exception for judgments.
61
In addition, it has become an increasing
source of ire for those who support gay marriage, which will be discussed in more detail infra.
Regardless, the US remains notably more decentralized and federalist than its neighbor to the
South and given the strength and historical importance of the federated units in American history
and culture, this is not perhaps surprising.
Gay Marriage and Federalism: A case study
The stories of same sex marriage in the United States and Mexico are inextricably linked
with the differing concepts and experiences of federalism in both nations. The federal character
of both countries has had a massive impact on the development of gay marriage in both

57
Id.
58
Emily J. Sack, The Retreat from Doma: The Public Policy of Same-Sex Marriage and A Theory of Congressional
Power Under the Full Faith and Credit Clause, 38 Creighton L. Rev. 507, 508 (2005)
59
Id.
60
This perhaps reflects the more cohesive national society we live in. As the US moves further away from its early
history it is only natural that relics of that era like the public policy exception would become less important.
61
"No Public Policy Exception Exists for the Full Faith and Credit Clause," South Carolina Law Review Blog,
August 13, 2013, accessed December 14, 2013, http://www.sclawreview.org/blog/2013/08/13/no-public-policy-
exception-exists-for-the-full-faith-and-credit-clause/.
countries, but the differences between American and Mexican federalism have led to divergent
outcomes.
In Mexico and the United States, the individual federal units handle marriage law. This
means that the overwhelming majority of action on gay marriage has taken place (in both
countries) at the state level.
62
A brief overview of efforts to gain marriage equality at the state
level in both the United States and Mexico would likely be helpful.
In the United States, the first attempt to gain recognition of same sex marriage occurred
in 1971 with the famous Baker v. Nelson case.
63
In Baker, a Minnesota couple argued that
Minnesotas refusal to grant them a marriage license because they were both male constituted
sex discrimination.
64
Obviously, Baker was unsuccessful, and the issue of marriage for same sex
couples lay largely dormant for the next 20 years. In 1993, the Supreme Court of Hawaii ruled in
Baehr v. Lewin that Hawaiis refusal to grant same sex marriage licenses was potentially a
violation of the Constitution of Hawaiis prohibition on sex discrimination.
65
Procedural issues
surrounding Baehr necessitated it being remanded to trial court and reworking its way to the
Hawaiian Supreme Court.
66
However, the initial judgment caused a sort of anti-gay marriage
panic as opponents began to fear that Hawaii would eventually legalize gay marriages that would
then have to be recognized in other states.
67
In response to this fear and perhaps motivated by the

62
A web search will show that the majority of news relating to same sex marriage activism from both countries has
thus far centered on their states as opposed to the federal government.
63
Baker v. Nelson, 191 N.W.2d 185 (1971)
64
Id.
65
Baehr v. Lewin, 852 P.2d 44, 47 (1993)
66
852 p.2d. at 69.
67
United States House of Representatives Committee on the Judiciary (July 9, 1996), "Report 104-664: Defense of
Marriage Act", 411, available at: http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdf.
more petty political concerns of forcing President Clinton to choose between re-election and
angering his gay supporters, Congress enacted the Defense of Marriage Act.
68

At the federal level, only the United States (as opposed to Mexico) had legislation, which
explicitly prohibited federal government recognition of gay marriages. The Defense of Marriage
Act, passed in 1996, was composed of two key sections.
69
Section 3-which was struck down on
June 26, 2013 in United States v. Windsor discussed in more detail infra- defined marriage for
the purpose of federal statutes as consisting solely of marriages between a man and a woman.
70

Supposedly, this was meant to ensure a nationwide definition of marriage for the purpose of
federal programs, so that gay couples would not suffer the indignity of losing federal rights based
on which state they resided in.
71
Section 2, which remains in force today, specifically extended
the Public Policy Exemption to the Full Faith and Credit Clause to cover gay marriage.
Specifically Section 3 states that:
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any
other State, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such other
State, territory, possession, or tribe, or a right or claim arising from such
relationship.
72


Section 2 will be discussed in more detail infra.
Following the passage of DOMA, the battle shifted back to the states. Anti-gay marriage
organizations pushed mightily for states to pass amendments to their state constitutions banning

68
Defense of Marriage Act, available at: http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/pdf/PLAW-
104publ199.pdf.
69
Id.
70
Id.
71
A classic case of political double speak. See report at note 67.
72
See note 68.
gay marriage and other forms of legally recognized gay unions.
73
These efforts met with a great
deal of success, between 1998 (when Hawaii passed the first anti-gay marriage amendment) to
2012 (when Minnesota rejected an attempt to pass such an amendment) 30 states added
amendments prohibiting same sex marriage to their constitutions.
74
A great many of these
amendments were passed in 2004 likely in response to the legalization of gay marriage in
Massachusetts by Goodridge v. Department of Health.
75

Massachusetts remained the only state to legalize gay marriage until 2008, when
California
76
and Connecticut
77
also legalized it. In 2009, Vermont became the first state to
legalize same sex marriage through the legislative process rather than a court ruling.
78
By the end
of 2013, 16 states with 38% of the US population had legalized gay marriage.
79
These victories
at the state level were buttressed by victories at the federal level. In June 2013, United States v.
Windsor paved the way for extremely limited federal recognition of same sex marriages in states
where they are not recognized or performed.
80
Much of the reasoning of Windsor was built

73
James Dao, "Same-Sex Marriage Issue Key to Some G.O.P. Races," The New York Times, November 4, 2004,
http://www.nytimes.com/2004/11/04/politics/campaign/04gay.html.
74
These states are Hawaii (1998), Alaska (1998), Nebraska (2000), Nevada (2002), Mississippi (2004), Missouri
(2004), Montana (2004), Oregon (2004), Arkansas (2004), Georgia (2004), Kentucky (2004), Louisiana (2004), North
Dakota (2004), Ohio (2004), Oklahoma (2004), Utah (2004), Michigan (2004), Kansas (2005), Texas (2005),
Colorado (2006), Tennessee (2006), Alabama (2006), Idaho (2006), South Carolina (2006), South Dakota (2006),
Wisconsin (2006), Virginia (2006), California (2008-found unconstitutional 2010), Arizona (2008), Florida (2006),
North Carolina (2012.)
75
Mike Allen, "Bush Backs Amendment Banning Gay Marriage," The Washington Post, February 25, 2004.
76
Adam Liptak, "California Supreme Court Overturns Gay Marriage Ban," The New York Times, May 16, 2008,
http://www.nytimes.com/2008/05/16/us/16marriage.html?pagewanted=all.
77
Christine Stuart, "Gay Marriage Is Ruled Legal in Connecticut," The New York Times, October 11, 2008,
http://www.nytimes.com/2008/10/11/nyregion/11marriage.html?pagewanted=all.
78
Keith Richburg, "Vermont Legislature Legalizes Same-Sex Marriage," The Washington Post, April 7, 2009,
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/07/AR2009040701663.html.
79
"Percent of Population Living in States with Marriage Equality," Human Rights Campaign, November 10, 2013,
accessed December 14, 2013, http://www.hrc.org/resources/entry/percent-of-population-living-in-states-with-
marriage-equality.
80
Full federal recognition for same sex couples is available to those who live in states that recognize or perform
same sex marriages or for married military couples regardless of state or country of residence.
around federalist ideas.
81
In particular, Justice Kennedy-who wrote the majority opinion-focused
on the fact that the federal government was demeaning relationships that states, had decided to
provide legal recognition and support for.
82
Many commentators feel that this opinion
83
lays the
groundwork for a broader expansion of gay marriage rights around the United States.
84

Currently a major debate within the American LGBT rights movement is occurring over
what step should be taken next.
85
While organizing on the state level continues apace, there is
recognition that same sex marriage rights are not likely to become universally available until the
Supreme Court of the United States rules that such a right is available under the federal
Constitution. The major question is what path should be taken: universal recognition or universal
performance. Performance is likely the option most gay rights advocates would choose. This
would entail a ruling under the 14
th
Amendment to the Federal Constitution that the Equal
Protection Clause requires states to provide marriage licenses to same sex couples. There are
already a large number of cases pending in federal and state court on this issue, many filed
immediately after the ruling in Windsor came down.
86
The worry is that this would represent a
massive federal intervention in an area hitherto left to the states and that this would not receive

81
Ernest Young, "Federalism, Liberty, and Equality in United States v. Windsor,"Cato Supreme Court Review: 117-
118, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5845&context=faculty_scholarship.
82
Young, 118.
83
Including the august personage of Justice Scalia. See United States v. Windsor, 133 S. Ct. 2675, 2709 (2013.)
84
Paul Smith, "The Court Opts for an Incremental Approach but a Major Victory Nonetheless," SCOTUSblog, June
26, 2013, accessed December 14, 2013, http://www.scotusblog.com/2013/06/the-court-opts-for-an-incremental-
approach-but-a-major-victory-nonetheless/.
85
Chris Geidner, "Ohio Officials Ordered to Recognize Gay Couple's Marriage," BuzzFeed, July 22, 2013, accessed
December 14, 2013, http://www.buzzfeed.com/chrisgeidner/ohio-officials-ordered-to-recognize-gay-couples-
marriage.
86
"Legal Battle over Gay Marriage Moves to the South," USA Today, December 13, 2013, accessed December 14,
2013, http://www.usatoday.com/story/news/nation/2013/12/12/supreme-court-gay-lesbian-marriage-
virginia/3653993/.
as much support from Justice Kennedy as options that might be more respectful of state
authority.
87

Universal recognition is based around the idea that there is no constitutional basis for the
Public Policy Exemption, at least as it is currently constituted.
88
Here the goal would be to either
strike down Section 2 of DOMA or leave a portion of the PPE behind for other issues or remove
the PPE altogether. Either choice would force states to recognize same sex marriages regardless
of whether or not they are performed in the state. Compared to universal performance cases,
there are relatively few universal recognition cases pending. In fact, there is only one major case
dealing with this issue that has received any sort of consideration at this point: Obergefell v.
Kasich.
89
Obergefell deals with an Ohio couple, married in Maryland, who wish for recognition
of their marriage by Ohio.
90
The issue here has a great deal of urgency given that one member of
the couple is dying from Lou Gehrigs disease and without state recognition of their marriage,
they will be unable to share a common gravesite.
91
The U.S. District Court for the Southern
District of Ohio has ruled that Ohio is required to recognize the marriage under the Full Faith
and Credit Clause since prohibiting gay marriages is not an issue of public policy for the purpose
of the exemption.
92

This line of reasoning though is unquestionably in the minority, while the push for full
recognition gains money and court victories. However, in Mexico, this battle is reversed with
potentially interesting lessons for the American LGBT movement. Homosexual activity was

87
"Both Sides Say Kennedy Opinion on Gay Marriage Could Doom State Laws," The Hill, June 26, 2013, accessed
December 14, 2013, http://thehill.com/homenews/news/308545-both-sides-say-kennedy-opinion-on-same-sex-
marriage-could-doom-state-laws.
88
Sack, 509.
89
Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio July 22, 2013)
90
Geidner.
91
Id.
92
2013 WL 3814262.
decriminalized in Mexico following the French invasion and the adoption of the Napoleonic
Code.
93
The organized LGBT rights movement in Mexico arose in the early 1970s in response to
the growing movement in the United States and Western Europe.
94
The Frente de Liberacin
Homosexual, founded in 1971, was perhaps the first LGBT rights organization founded in Latin
America.
95
The FLH and other groups developed throughout the 1970s and served primarily as a
rallying point to increase awareness of issues facing LGBT persons in employment.
The role of Mexicos LGBT rights organizations began to change in the 1980s with the
beginning of the AIDS crisis.
96
The increasing awareness of homosexuality in Mexican society
brought on by the AIDS crisis led to a broader political debate on the role and legal status of
LGBT persons. Mexicos fractured political arena and history of secularism following Juarezs
liberal revolution has led to a general de-emphasis on so-called moral issues in Mexican
political life.
97
Broadly speaking though the Party of the Institutional Revolution (PRI) and Party
of the Democratic Revolution (PRD) support increased rights for LGBT persons while the
National Action Party (PAN) opposes.
98

Throughout the 1980s and 1990s, the growing presence and awareness of Mexican LGBT
persons led to major changes in their legal status. In 1999, the PRD controlled legislature in the
Federal District (Mexico City) passed Mexicos first anti-discrimination law covering sexual

93
Stephen Cook, Containing a Contagion: Crime and Homosexuality in Post-revolutionary Mexico City (Ann
Arbor, MI: ProQuest, 2008), 13.
94
"Crdenas, Nancy," Glbtq Arts Crdenas, Nancy, accessed December 14, 2013,
http://www.glbtq.com/arts/cardenas_n.html.
95
Id.
96
Patricia Zuniga, "AIDS in Mexico," TheBody.com, November 1998, accessed December 14, 2013,
http://www.thebody.com/content/art12264.html.
97
Andrew Reding. "Mexico: Treatment of Homosexuals," April 1998, accessed December 14, 2013,
http://www1.umn.edu/humanrts/ins/mexico_demochumrts_98.html.
98
See http://www.mexicogulfreporter.com/2013/10/same-sex-civil-unions-approved-in.html,
http://www.catholicculture.org/news/headlines/index.cfm?storyid=5102, and
http://www.pinknews.co.uk/2013/08/19/mexico-politician-rejects-equal-marriage-as-gay-people-dont-look-each-
other-in-the-eye-during-sex/
orientation.
99
In 2003, the Federal Law to Prevent and Eliminate Discrimination was
unanimously passed and explicitly prohibited discrimination based on sexual orientation.
100
The
passage of this law made Mexico only the second
101
Latin American country to prohibit
discrimination on the basis of sexual orientation.
102

These victories in the field of anti-discrimination law led to efforts to procure legal
recognition for same sex unions. Again, it was the Federal District that led the way on extending
legal rights to same sex unions.
103
In 2006, Mexico Citys PRD dominated legislature authorized
civil unions, the second Latin American jurisdiction to do so (following Buenos Aires in
2002.
104
)
105
The Federal Districts actions were followed in 2007 by the State of Coahuila when
it created its version of civil unions.
106
This state level recognition of civil unions did not lead to
a federal law on the issue, nor were the rights granted by civil unions recognized outside of the
state (or federal district) which granted them.
Following the adoption of civil unions, many in the Mexican gay rights movement felt
that while these were a strong first step to equality more action was needed to ensure full LGBT

99
Andrew A. Reding. Mexico: Update on Treatment of Homosexuals. U.S. Citizenship and Migration Services.
May 2000. Available at: http://www.uscis.gov/files/nativedocuments/QAMEX00.pdf.
100
"Mexico Protects Its Gay and Lesbian Citizens with New Law.," The Free Library, accessed December 14, 2013,
http://www.thefreelibrary.com/Mexico protects its gay and lesbian citizens with new law.-a0108149079.
101
After Ecuador.
102
Id.
103
Erich Cota, "Mexico City Approves Same Sex Unions," November 19, 2006,
http://english.ohmynews.com/articleview/article_view.asp?menu=c10400&no=329768&rel_no=1.
104
"Argentina: Civil Union Proposals Passed in Rio Negro Province and Buenos Aires City | IGLHRC: International
Gay and Lesbian Human Rights Commission," IGLHRC: International Gay and Lesbian Human Rights
Commission, accessed December 14, 2013, http://iglhrc.org/content/argentina-civil-union-proposals-passed-rio-
negro-province-and-buenos-aires-city.
105
Cota.
106
"Mexican State Approves Gay Civil Unions," The M&G Online, January 13, 2007, accessed December 14, 2013,
http://www.mg.co.za/article/2007-01-13-mexican-state-approves-gay-civil-unions.
equality in the law.
107
Building on those sentiments, David Raz a PRD member of the Federal
Districts Legislative Assembly introduced a bill legalizing same sex marriage in Mexico City
stating that: "Gays and lesbians pay taxes like everyone else, obey the law like everyone else,
build the city like everyone else, and there is no reason they should have a different and special
set of rules."
108
The debate was contentious with one member of the PRI going so far as to hand
out pamphlets arguing that the bill would promote transgender prostitution
109
and the PAN
strongly stating that they desired a referendum on the issue and would pursue a challenge of the
law in court.
110

Despite these issues, the PRD dominated Assembly easily passed the same sex marriage
bill on December 21, 2009.
111
The bill became legal on March 4, 2010 while PANs legal
challenge remained pending.
112
The Supreme Court of Mexico then issued two key judgments on
the issue within a week of each other in August of 2010.
113


107
Rory Carroll, "We Do: Mexico City Blazes Trail with Legalisation of Same-sex Marriage," The Guardian,
December 23, 2009, accessed December 14, 2013, http://www.theguardian.com/world/2009/dec/22/mexico-city-
legalises-samesex-marriage.
108
"Mexico City Lawmakers to Consider Gay Marriage," Latin American Herald Tribune, accessed December 14,
2013, http://www.laht.com/article.asp?ArticleId=348002.
109
Monica Archundia, "Proyecto De Matrimonio Gay "divorcia" a La ALDF," El Universal, November 25, 2009,
accessed December 14, 2013, http://www.eluniversal.com.mx/ciudad/98773.html.
110
Horacio Jimenez, "PAN Amaga Con Impedir Bodas Gay," El Universal, December 16, 2009, accessed December
14, 2013, http://www.eluniversal.com.mx/ciudad/99225.html.
111
"Mexico City Backs Gay Marriage in Latin American First," BBC News, December 21, 2009, accessed
December 14, 2013, http://news.bbc.co.uk/2/hi/americas/8425269.stm.
112
Anne-Marie O'Connor, "With Same-sex Marriage Law, Mexico City Becomes Battleground in Culture Wars,"
Washington Post, March 03, 2010, accessed December 14, 2013, http://www.washingtonpost.com/wp-
dyn/content/article/2010/03/02/AR2010030203671.html.
113
"Mexico High Court Rules Mexico City Same-sex Marriages Must Be Recognized Nationwide," JURIST - Paper
Chase, August 11, 2010, accessed December 14, 2013, http://jurist.org/paperchase/2010/08/mexico-high-court-
rules-mexico-city-same-sex-marriages-must-be-recognized-nationwide.php.
The first dealt only with the constitutionality of the gay marriage law in Mexico City
itself.
114
The Court held in a 8-2 judgment that Mexico Citys law did not violate the guarantee
of familial integrity found in Title I, Chapter I, Article III, Section I, Clause 3.
115
The Court
found that contrary to the argument advanced by the Mexican Attorney General, the Constitution
did not contain a definition as to what precisely constituted a family for the purpose of that
guarantee.
116
Furthermore, the Court rejected arguments by the State governments in Baja
California and Jalisco that the law had a negative impact on their states.
117
Specifically the Court
found that individual states had the authority to regulate their own issuance of marriage
licenses.
118

While this ruling was critical in establishing that the Federal District could implement its
same sex marriage law, for approximately a week thereafter the status of same sex marriage in
the states that had not extended legal recognition to gay marriages was roughly equal to that of
such marriages in the United States today. Couples married and resident in the Federal District
had all state and federal rights while those married in the Federal District and resident in other
states had limited federal recognition but no state level rights. This situation was changed
radically after the Courts ruling on August 10, 2010 that all states were required to recognize
same sex marriages conducted in the Federal District as valid regardless of whether the state in
question allowed for same sex marriages to be performed.
119


114
Dwyer Arce, "Mexico High Court Upholds Mexico City Same-sex Marriage Law," JURIST - Paper Chase,
August 6, 2010, accessed December 14, 2013, http://jurist.org/paperchase/2010/08/mexico-supreme-court-upholds-
same-sex-marriage-law.php.
115
Id.
116
Id.
117
Id.
118
Id.
119
"Mexico High Court Rules Mexico City Same-sex Marriages Must Be Recognized Nationwide," JURIST - Paper
Chase, August 11, 2010, accessed December 14, 2013, http://jurist.org/paperchase/2010/08/mexico-high-court-
rules-mexico-city-same-sex-marriages-must-be-recognized-nationwide.php
While the Attorney Generals office argued that doing so would violate Article 121 of the
Constitution of Mexico, which establishes that states have competency to set their own
requirements for civil records like marriage licenses, the Justices rejected this argument.
120
Their
rejection appears to have been heavily based on the patchwork of marriage statuses that such a
judgment would create. As Justice Arturo Zaldvar asked, regarding what would happen to
couples who left the District on vacation or simply to move: Does this marriage disappear?
They go on vacation and theyre no longer married?
121

The fallout from the Federal Districts legalization of same sex marriage and the
subsequent constitutional fallout has resulted in efforts to bring performance of same sex
marriage to other states and efforts to more explicitly ban same sex marriage in others. Yucatan
for instance overwhelmingly passed a law banning same sex marriage in 2009, but while this
prevents Yucatan from performing such marriages, it still must recognize those entered into in
other states.
122
On the other hand a string of cases out of Oaxaca show a way forward for
performance of gay marriage throughout the country.
123
So far the Supreme Court has heard
three gay marriage cases from Oaxaca (all of which were decided unanimously) that found a
refusal to grant same sex couples marriage licenses violated the Constitutions prohibition on
discrimination based on sexual orientation.
124
However the Mexican judicial system requires five
individual cases to be decided on the same lines before a precedent can be established, as such

120
David Agren, "Mexican States Ordered to Honor Gay Marriages," The New York Times, August 10, 2010,
http://www.nytimes.com/2010/08/11/world/americas/11mexico.html?_r=1&.
121
Id.
122
Maegan Mala, "Yucatan Will Penalize Gay Marriage, Abortion," VivirLatino, July 22, 2009, accessed December
14, 2013, http://vivirlatino.com/2009/07/22/yucatan-will-penalize-gay-marriage-abortion.php.
123
Lester Feder, "Mexican Supreme Court Rules for Marriage Equality," Salon, December 6, 2012, accessed
December 14, 2013, http://www.salon.com/2012/12/06/mexican_supreme_court_rules_for_marriage_equality/.
124
Id.
performance of same sex marriage is not as of yet constitutionally required.
125
Other cases are
pending in states ranging from Quintana Roo (which currently performs gay marriages per the
order of the Secretary of State for Quintana Roo)
126
, Colima (where in June 2013 a district court
judge found that provisions of the Colima Civil Code limiting marriage to opposite sex couples
was unconstitutional)
127
, and Chihuahua (where at least one gay couple has married in September
of 2013.)
128
All of this though is taking place against the backdrop though of universal
recognition of same sex marriages conducted in the Federal District and Quintana Roo, which
creates an interesting contrast with the gay marriage debate as it plays out in the United States.
In particular, the recognition afforded to gay marriages throughout Mexico has had a
massive impact on support for gay marriage in the country. A study conducted by Vanderbilt
University in 2010 found that 38% of the country supported same sex marriage.
129
Another
survey conducted in 2013 found that 52% of Mexicans supported same sex marriage.
130
It seems
clear that Mexico is on a course for universal performance of same sex marriage, but at least as a
consolation measure same sex couples in Mexico have access to marriage and the rights it grants
regardless of their state of residence so long as they can travel to a state or district that performs
them.

125
"Mexican Supreme Court Decision First Step in Possible Path to National Marriage Equality," GLAAD: Leading
the Conversation for LGBT Equality, December 7, 2012, accessed December 14, 2013,
http://www.glaad.org/news/mexican-supreme-court-decision-first-step-possible-path-national-marriage-equality.
126
Adriana Varillas, "Revocan Anulacion De Bodas Gay En QRoo," El Universal, May 3, 2012, accessed December
14, 2013, http://www.eluniversal.com.mx/notas/845171.html.
127
"Mexican State of Colima Allows Same-sex Civil Unions," BBC News, July 30, 2013, accessed December 14,
2013, http://www.bbc.co.uk/news/world-latin-america-23502039.
128
"Hay Siete Parejas Gay En Espera De Casarse," El Heraldo De Chihuahua, August 23, 2013, accessed December
14, 2013, http://www.oem.com.mx/elheraldodechihuahua/notas/n3098171.htm.
129
German Lodola, "Support for Same Sex Marriage in Latin America," 2010, accessed December 14, 2013,
http://www.vanderbilt.edu/lapop/insights/I0844.enrevised.pdf.
130
"Matrimonio Gay a Debate: 52% De Los Mexicanos Apoya Legalizacin," Terra, November 22, 2013, accessed
December 14, 2013, http://noticias.terra.com.mx/mexico/matrimonio-gay-a-debate-52-de-los-mexicanos-apoya-
legalizacion,03653b996e182410VgnVCM5000009ccceb0aRCRD.html.
Conclusion
Efforts to expand access to marriage for same sex couples can tell us much about the
political and governmental structure of a country. While the United States and Mexico are both
supposedly federal states with strong protections for individual rights and freedoms, they have
approached the gay marriage debate in unique ways that show us the true depths of their
respective commitments to federalism.
In the United States, the strength of the federal system is shown through the deference to
the Full Faith and Credit Clauses public policy exemption. This deference comes in not only in
courts but also in the unwillingness of many advocates to engage in bringing cases seeking full
recognition of out of state same sex marriages in states that do not recognize them. In Mexico,
the Supreme Courts decision to force non-performing states to recognize gay marriages
performed elsewhere speaks to true centralized nature of the Mexican federal system. These
differing responses to same sex marriage law are rooted not only in opinions about same sex
marriage, but also in long standing constitutional and developmental legal differences. The
question of which is preferable, which has often come up in U.S. media since 2010, is a difficult
one. Perhaps the answer is simply that one method is not preferable to another, but simply that
they reflect the differences in each countrys idea and conceptualization of federalism.