JURIST Guest Colomnist Graciela Jasa Silveira discusses potential legal and constitutional consequences as a result of Mexican President Peña Nieto’s initiatives to support same-sex family rights…

Mexican President Enrique Peña Nieto made public two bills [PDF, in Spanish] to make-constitutional the right to marriage, and to amend federal family law to guarantee same-sex partners access to marriage and adoption on May 17. This is unquestionably an important event. If successful, the initiatives will legalize same-sex marriage nationwide, and have major effects on same-sex families in relation to a number of different public benefits regulated exclusively, or in part, by federal law (like labor, immigration, general health, federal crimes, among many others).

However, the fact is that while proponents of marriage equality may cheer over the presidential initiatives, the initiatives also raise issues of profound constitutional and policy significance. First among these is the issue of federal legislative power in the family law domain. There is no such explicit federal power pertaining to marriage. Mexico, like the US, has a federal government. While the US Constitution enumerates certain powers for the federal government, responsibility for marriage and family issues is not among them, as this is an area of law reserved to states as part of their residual powers. Yet, the Mexico bills are controversial because they reflect a long-standing trend to federalize family law in Mexico. Historically, family law was codified exclusively at the local level by each individual state. However, since late 1800’s there has been concerted attempts by the federal government to centralize family law while preserving the authority of individual states to legislate in this matter. These measures include the enactment and maintenance of the federal civil code which Peña Nietos’ bill aims to amend when jurist have long regarded this code as fundamentally incompatible with our constitutional system. This initiative can best be characterized as an attempt at relaunching the federal government’s role in steering national family law policy, which lost its influence after the year 2000 when Mexico City became a trailblazer of LGBT and women’s rights.

The least controversial part of Peña Nietos’ bill, the extension of including of the right to marriage in the constitution, also requires reconsideration. Many queer activists and scholars have relentlessly critiqued same-sex marriage advocacy. They have noted that the use of marriage as a reference point to advance LGBT rights has entailed prioritizing of the marital norm and orthodox gendered roles while doing little to advance the needs of the larger LGBT community, and of rights of families living outside of marriage. Thus, while the bill may pave the way for a culmination of LGBT advocacy, the question is still whether this progressive initiative will actually materialize into something much more meaningful that directs family law away from heterosexual and gendered family models.

The over-focus on same-sex marriage by the media has also missed some important provisions in the proposed legislation, where inter-state divisions are perhaps more legitimate: the elimination of no-fault divorce. While no-fault divorce has long been available in Mexico, only a few Mexican states have moved to eliminate fault-based divorce from their civil codes. However, no public debate has preceded this initiative, and it is not accompanied with a reform package to the address the issue of gender-related power differentials in divorce, as well as its negative economic impact on the main custodial parent, typically the mother. It is a well-known fact that parents face a number of complex barriers in obtaining and enforcing a support order in Mexico. Family court users in Mexico have cited problems with obtaining agreement with respect to financial and custody issues, and have also expressed concern over the lack of support warranties in the use of voluntary judicial divorce. This is a vital problem considering that women-initiated support claims make up almost 40 percent of the family court’s work.

Additionally, there are also distinctive socio-economic issues affecting support recovery in Mexico. It is impossible or very difficult to enforce or guarantee support payments when parents work under informal work schemes, do not have property, or live and work illegally in the US (which is increasingly the case). These limits to support recovery negatively impact mothers who retain custody of their children, and thus have to devise ways to offset the would-be financial support and care-taking efforts of the absent parent. The shift in favor of no-fault divorce has made it more difficult for women to use divorce as a process to protect themselves from economic or physically abusive husbands while securing their status as primary family care-takers. This problem is very important if one considers that in Mexico, unlike Canada and the US, there are no government programs designed to facilitate access to spousal or child support to offset child rearing expenses. Nonetheless, it is ironic that Peña Nietos has made the move to essentially establish no-fault divorce as the law of the land, despite the concerted movement within US courts and legislatures seeking to counteract unilateral divorce laws, and its potential negative effect on families.

Graciela Jasa Silveira, is a former Gordon F. Henderson Post-Doctoral Fellow at the Human Rights and Education Centre, and member of the Interdisciplinary Research Laboratory on the Rights of the Child at the University of Ottawa, Canada. Graciela is a Mexican lawyer with graduate studies in the US and Canada. Her research is focused in family law reform and human rights. .

Suggested citation: Graciela Jasa Silveira, Potential Legal Consequences of Mexico’s Initiative to Legalize and Constitutionalize Same-Sex Marriage, JURIST – Professional Commentary, July 2, 2016, http://jurist.org/forum/2016/07/graciela-silveira-same-sex.php.