Jalisco in a political fight to avoid being the fourth Mexican State to recognize same-sex marriage
2013 has been a revolutionary year in terms of a civil rights movement of same-sex couples seeking marital equality. In June, The U.S. Supreme Court struck down section 2 of DOMA and drastically altered the landscape by allowing same-sex couples married in states that recognize same-sex marriage to receive federal benefits. The Mexican Supreme Court previously took similar action by recognizing basic Constitutional protections of gay couples. Many states in both the United States and Mexico are either legalizing same-sex marriage, or trying to side-step the issue by passing civil-union laws. The avoidance of marriage equality by some Mexican states only puts off the inevitable forced-recognition of same-sex marriage by the Mexican courts in 2014.
On October 31, 2013, the State of Jalisco Mexico legalized same-sex civil unions trying not to become the fourth Mexican state to recognize marriage equality. Same sex couples under the new law may enter into a written marital contract but may not adopt children or call the union “marriage”. In short: this is not “marriage”.
On the other side of the border, and ten days prior to the Jalisco vote, New Jersey became the 14’th U.S. state to recognize same-sex marriage, while on the same day, Nashville attorney Abby Rubenfeld filed a lawsuit in federal court seeking to declare the prohibition on same-sex marriages in Tennessee unconstitutional. This lawsuit is similar to other lawsuits currently filed in several states in the U.S. seeking full recognition of same sex marriages asserting equal protection challenges inter alia.
Although the legal systems on both sides of the border differ drastically, the issue of marriage equality and fundamental rights appear to have a lot in common. Both countries are grappling with major changes handed down from their respective high courts. The Mexican Supreme Court held that federal human rights guarantees apply to same-sex couples, but did not directly address other civil rights. In today’s world, international and state-to-state travel certainly guarantees that same-sex couples’ rights can change in an instant by crossing a state line or international border. One can only imagine a situation where a child of a same-sex couple is not recognized as the legitimate child following a death of one parent merely because the couple moved from state-to-state or has retired abroad. Such results will certainly spawn litigation.
On October 30, 2013, the Jalisco Legislature decided in a 20 to 15 vote that same-sex unions are now legal in the populous state of Jalisco. For those stateside, a large population of American, Canadian and German expats reside in Guadalajara, Puerto Vallarta and Chapala, Jalisco Mexico. For those in Mexico, Tennessee is a major tourist destination with large populations of Latinos, especially in Nashville and Memphis but with a less-auspicious gay population. In Mexico, Puerto Vallarta is a major gay vacation destination and does not hide this fact. The beaches, food and friendly locals are world-renown.
What remains clear is that in those states that deny full marriage equality, is that certain rights, including parental rights, adoptions, and inheritance issues will be decided by the courts. In both countries, family law and decedent’s rights are traditionally a matter of state law. Under the current patch work of state laws in the U.S. and Mexico, same-sex couples do not enjoy the same rights as traditional couples in Mexico and in the U.S. The vote by the Jalisco legislature, follows the State of Colima legislature’s passage of a similar civil union law. What is happening in Mexico is that states are either throwing in the towel due to the inevitability of the passage of sex-sex marriage by the courts, or putting off that eventuality. These issues are certainly going to come up through the state courts in 2014. What many Americans in the U.S. fail to recognize is the vast influence the Roman Catholic Church has in Mexico. Notwithstanding Pope Francis’, apparent tolerance of gays, the Roman Catholic Church, Diocese of Guadalajara, officially and vehemently opposes gay marriage and supported the civil-union law for that reason.
Same-sex couples are in the midst of a momentous civil rights movement. If the Jalisco legislature does not take up the issue of what core rights are afforded to same-sex couples, the courts will certainly declare full-marriage an inherent right in that state. If the Nashville District Court suit is successful, the traditional rights that flow from any marriage will be clarified. In the State of Tennessee. this type of litigation is virtually guaranteed in every U.S. state that does not fully recognize sex-sex marriages.
Sean Lewis is an immigration attorney based in Nashville, Tennessee. He has filed many same-sex visa petitions for spouses and fiancés before the immigration service and U.S. consulates following the US Supreme Court decision. Sean has local ties to Puerto Vallarta and is married to a native of Nayarit and Vallarta. For those in Mexico, Sean may be contacted by his Guadalajara landline at 01-(335) 004-2258, or visited on his web site at www.MusicCityVisa.com.