Procedural Posture

The Federal Attorney General challenged the constitutionality of a series of Civil Code amendments that permitted same-sex couples to marry and adopt children.

Facts

In December 2009 the legislature of the Federal District amended a series of articles of the Federal District’s Civil Code. Article 146, as amended, defined marriage in gender-neutral terms. In addition, Article 391, as amended, permitted same-sex couples to adopt children under the same conditions as opposite-sex couples.

Issue

Whether the challenged provisions were compatible with constitutional provisions that protected marriage and the family.

Domestic Law

Constitution of Mexico, Articles 1, 4, 14, 16, and 133.

Federal Civil Code of Mexico, Articles 146 and 391.

International Law

Committee on Economic Social and Cultural Rights, General Comment No. 20, Article 2, Paragraph 1: Non-discrimination in economic, social and cultural rights, UN Doc. E/C.12/GC/20, 2 July 2009.

Convention on the Rights of the Child, Articles 3, 9, 12, 19, 20, 21, and 27.

Human Rights Committee, General Comment No. 16, Article 17, 8 April 1988 (right to respect of privacy, family, home and correspondence, and protection of honour and reputation).

Human Rights Committee, General Comment No. 19, Article 23, 27 July 1990 (protection of the family, the right to marriage and equality of spouses).

Report of the independent expert on minority issues, Gay McDougall, UN Doc. E/CN.4/2006/74, 6 January 2006.

Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.

Advisory Opinion OC-4/84, Inter-American Court of Human Rights, 1984.

Cossey v. United Kingdom, ECtHR, 1990.

EB v. France, ECtHR, 2008 (finding that refusing lesbian woman permission to adopt a child violated Articles 8 and 14).

Fretté v. France, ECtHR, 2002 (finding that refusing a gay man permission to adopt a child did not violate Article 8 or Article 14).

Goodwin v. United Kingdom, ECtHR, 2002 (holding that classifying post-operative transgender persons according to their sex before surgery sex violated Articles 8 and 12 of the European Convention, overruling earlier cases on transgender recognition).

Kozak v. Poland, ECtHR, 2010 (finding that same-sex couples without children were protected by right to family life under Article 8).

Rees v. United Kingdom, ECtHR, 1986 (finding that State’s refusal to recognise applicant’s post-operative gender did not violate Articles 8 or 12).

Sheffield and Horsham v. United Kingdom, ECtHR, 1998 (finding that State refusal to recognise a person in his or her new post-operative gender was not a violation of Article 8).

X, Y and Z v. United Kingdom, ECtHR, 1997 (finding no violation of Article 8 where a transgender man was not granted legal recognition as the father of the three children born to his female partner during their relationship).

Comparative Law

Laws and judicial decisions concerning same-sex marriage and same-sex unions in the Netherlands, Belgium, Spain, Norway, Sweden, Portugal, United States, Canada, South Africa, and Argentina.

Reasoning of the Court

The Attorney General argued that, under Article 4 of the Federal Constitution of Mexico, a family was formed by a father, a mother, and their children. This was the social structure that the institution of marriage was intended to protect. Article 16 of the Constitution required that every law have a valid legal purpose. According to the Attorney General, the challenged law lacked a valid legal purpose, because the Legislative Assembly had failed to show how the previous law (providing only for opposite sex marriage) violated the rights of gays and lesbians. Same-sex couples could already protect their relationships through other institutions, such as civil unions. Marriage, by contrast, was created to protect a particular kind of family unit that was based on biological reproduction.

The Attorney General next argued that the right to marry, as defined in international law, confirmed the heterosexual character of the institution. With regard to the Yogyakarta Principles, the Attorney General noted that, even if the instrument was relevant for the issue at stake, the Principles were not binding on Mexico.

Lastly, the Attorney General criticised the Legislative Assembly for not having taken into account the impact that reform of the Civil Code would have on adoption. Specifically, he argued that the Assembly had not considered the psycho-emotional impact that reform would probably have on the adopted children, and therefore failed to pursue the best interests of the child, in violation of both domestic law and the Convention of the Rights of the Child.

Before assessing the merits of the case, the Court analysed same-sex marriage or unions under international and comparative law. It concluded that same-sex marriage, and the benefits and rights of same-sex unions, were increasingly recognised across the world.

Next, the Court addressed the motion of unconstitutionality concerning Article 146 of the Civil Code. It noted that the reform at stake aimed at expanding rather than limiting rights. The test to be applied was therefore one of reasonableness rather than proportionality.

Furthermore the objective of constitutional protection was family and not marriage. What had to be protected was the family as a social reality in all its different forms. Moreover, since Article 4 of the Constitution dealt with family and not with marriage, it did not define the institution of marriage. Marriage itself was not an immutable or petrified concept.

The Court noted that the institution of marriage had undergone many changes in recent decades. These had included the legalisation of divorce and, most important, the break of the bond between marriage and reproduction. According to the Court, the institution of marriage was no longer tied to procreation and was grounded solely in the mutual bonds of affection, sex, identity, solidarity and the commitment of two individuals willing to live a life together. Therefore, recalling the right to free development of the personality that included both the right to sexual identity and the right to marriage, the Court held that the heterosexuality of the couple was not a defining feature of the institution of marriage.

Because same-sex couples have exactly the same characteristics as heterosexual couples, that is, both constituted a life partnership based on emotional and sexual bonds, it was reasonable to extend the right of marriage to them.

Lastly, the Court dismissed the Attorney General’s argument that same-sex marriage constituted a “threat” to the protection of family, affirming that same-sex marriage did not have a negative effect. Moreover, the sexual orientation of a couple could not be considered to affect the development of a child; for this reason, the denial of adoption rights to same-sex couples was also discriminatory.

The Court declared the motion ill-founded and affirmed the validity of Article 14.

Acción de Inconstitucionalidad 2/2010, Mexican Supreme Court of Justice (full text of judgment in Spanish, PDF)