Chapter IV Ending the Cohabitation Partnership Art.20 Termination:
III.3. Court Cases and Decisions
In the previous section of this chapter, all four structures of intimacy as regulated in Mexico have been analyzed. A distinction has been made between the types of intimacy contracts that are recognized at a state level and those accepted at the federal level. Now, it will be explained how a state legislation in the form of a federal structure of intimacy has created social, administrative and constitutional controversies. These conflicts will show the incompatibility of state legislations with federal institutions. Especially, as local legislations begin to be more flexible, the federal structure remains rigid. The administrative challenges of the federal system in Mexico end up affecting an individual’s spheres of intimacy as well.
First of all, it is necessary to discuss the amendments made to the structure of matrimony in Mexico City. The case landed in the Mexican Supreme Court of Justice (SCJN), with a motion of unconstitutionality. This section will describe, in a brief manner, the decision made by the Supreme Court. Nonetheless, the actual examination of the grounds for this decision, the opinions and human rights evaluation will be discussed in Chapter IV.4. Then, the lawsuits against the Mexican Institute of Social Security (IMSS) will depict the administrative barriers same-sex
married couples face even after their matrimony has been celebrated.163 Matrimony is not the end, but rather a life instrument. The necessities that arise after celebrating a civil matrimony come from all five spheres of intimacy. Unfortunately, the public administration is not prepared to face new types of intimacy. Such inconsistencies underline the fact that a structure of intimacy has many ramifications. And, the regulations of the intimacy contract per se, do not suffice unless there is a holistic approach, adjusting all the secondary legislation that overlaps with the structure of intimacy as a whole. It is important to note that jurisdictions are different; a local legislation affects the operation of a federal institution. But, up to which point can a local legislative assembly override the faculties of a federal jurisdiction? This can only be understood after analyzing the case of civil matrimony in the Federal District, Mexico City, where the state/federal feud is evident.
III.3.1. Matrimony in Mexico City
On December 21, 2009, the Legislative Assembly in Mexico City passed another extraordinary legislation: the modification of Civil Matrimony in the Federal District.
The decree was published in the Official Gazette of the Federal District on December 29, 2009.164 This bill is actually very concise; it modifies eight articles of the Civil Code of the Federal District and the Code of Civil Procedures of the Federal District.
The amendments mostly replace the wording of these articles, with a more gender-neutral language, allowing both men and women to claim these rights. The most important amendment was made to Art. 146, now stating:
“Matrimony is the free union between two persons in order to accomplish life community, where they owe each other respect, equality and mutual support. It must be celebrated before a Judge of the Civil Registry and with the formalities that this code stipulates.”165
Entering into force forty-five days after its publication, since March 4, 2010, matrimony for same-sex couples is now available as well; however, only if the civil matrimony is celebrated within Mexico City. This new wording grants access to
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163 Instituto Mexicano del Seguro Social in Spanish (IMSS).
164 Official Gazette of the Federal District. Mexico, December 29, 2009 pp. 525-526.
165 In Spanish: “Artículo 146.- Matrimonio es la unión libre de dos personas para realizar la comunidad de vida, en donde ambos se procuran respeto, igualdad y ayuda mutua. Debe celebrarse ante el Juez del Registro Civil y con las formalidades que estipule el presente código.” Art. 146 CCFD!
same-sex couples to a structure of intimacy that remained until then exclusive of opposite-sex couples. Therefore, all the elements of matrimony discussed in the five spheres of intimacy, including adoption, are now offered to same-sex spouses. The legislation has not been embraced with the same excitement by all political parties.
The bill passed with 39 votes in favor, 20 against and 5 abstentions.
Mexico’s Attorney General submitted a Motion of Unconstitutionality166 before the Supreme Court of Justice on January 27, 2010. According to the Federal Constitution, Art.105.II.C, the Attorney General may submit a motion of unconstitutionality whose thesis is to exhibit the possible contradiction of a general norm and the Constitution. The deadline to submit these actions is thirty calendar days after the publication of that supposedly conflicting law. The Attorney General, Mr. Arturo Chavez Chavez, managed to submit the action last-minute and the request was admitted for review.167 The motion of unconstitutionality was based upon the following grounds:
a. The Legislative Assembly did not justify the need to pass the bill.168 b. This legislation damages the ideal [heterosexual] family model.169 c. Adoption by same-sex couples damages and discriminates children.170
d. It diverts the federal order, with the recognition of same-sex matrimony in the entire country.171
e. It violates the constitutional normative hierarchy.172
The Supreme Court of Justice ruled against the Motion of Unconstitutionality on August 16, 2010, supporting the amendment made by the Legislative Assembly of the Federal District with nine votes in favor and only two against it. This sentence ratified the bill amendments made to the civil code in Mexico City and it reiterated the following:
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166 Acción de Inconstitucionalidad in Spanish.
167 Judicial Gazette of the Federation. Supreme Court of Justice of the Nation. Mexico, Vol. XXXII, December 2010. File number 00002/2010-00.!
168 Art. 16 MexCon
169 Art. 4. I MexCon
170 Art. 4. VI-VII MexCon
171 Art. 14, Art. 16, Art. 121. IV MexCon
172 Art. 133 MexCon
a. Matrimony between same-sex spouses in the Federal District is constitutional, because Mexican States have the faculty to legislate in local civil matters.
b. A civil matrimony signed in and recognized by the Federal District must be recognized by the remaining 31 states in the Federation.
c. Same-sex spouses must not be discriminated against, so they also qualify for adoption as much as opposite-sex spouses do.
This sentence endorsed the legislation of the local legislative assembly in the Federal District, simultaneously commanding other states to acknowledge the validity of same-sex intimacy, even if constituted in a different jurisdiction in Mexico. The positive effects of this jurisprudence can be exemplified in the specific case of a lesbian couple who fought against the Federal Social Security System in Mexico City claiming their rights as spouses.
III.3.2. Castañeda v. the Mexican Institute of Social Security173
Mrs. Lol Kin Castañeda Badillo and Mrs. Judith Minerva Vazquez Arreola are two social activists in Mexico City, Castañeda is the President of the Pride Committee and Vazquez gave up her dream of becoming a nun when she realized she was a lesbian, so she joined the social cause as well. Castañeda and Vazquez were pioneers in many aspects; they were the first same-sex couple to sign into matrimony in Mexico on March 11, 2010,174 the first female matrimony in Latin America, and also, the first same-sex matrimony to face the nightmare of the Mexican bureaucracy. Castañeda was already working and was thus a beneficiary of social security.175 After their matrimony, she decided to register her now wife as her dependent so that she could be eligible for social security benefits as well. On April 12, 2010, the IMSS rejected their application arguing that only opposite-sex spouses qualified for social security benefits. They attempted to solve the issue at different levels within the IMSS.
However, a notification received on August 2, 2010, officially terminated their
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173 Injunction submitted on August 23, 2010 before the District Court in Labor Matters in Mexico City.
The case was filed as an appeal for a constitutional injunction called Amparo in Mexico. The so-called Amparo Law is very similar to the German Verfassungsbeschwerde figure. The discussion on the specific violation of Constitutional rights will be further developed in Chapter IV.
174 Marriage license number 875781.
175 Social Security Number: 4592762489-5.
request for application.176 It did not take long before Castañeda used her right to appeal for a constitutional injunction. The appeal was submitted at the Fourth District Court for Labor Matters and approved on November 9, 2010, the judge order the IMSS to proceed with the registration. Nonetheless, the Federal Government appealed the judge’s decision on November 22, 2010. A few weeks later, the Federal Government withdrew the appeal and the verdict made on November 9, 2010 was declared firm.177 The judicial process was quite political; the truth is that Art. 5 of the Social Security Law states that spouses and concubines are considered beneficiaries.
Nowhere does the article mention gender, or rather opposite-gender, as a precondition for eligibility. Daniel Karam, Secretary of the IMSS opposed the application, due to his party affiliations (the PAN) he maintained a rather conservative approach to this case in general. The result of the lawsuit was expected, because the wording of the SSL is clear. As soon as Castañeda and Vazquez signed into matrimony, they became spouses. Therefore, they could claim any rights conferred to spouses, regardless of their gender.
III.3.3. Conclusion
After the Castañeda case, Mexico City residents may now register their same-sex spouses as beneficiaries in the social security system. This process, however, is not automatic. The IMSS has the policy of denying the applications for registrations, same-sex spouses will only be admitted after the judicial process has ended and the applicants provide a court order. The interpretation of article 5 has been ratified by judges as they decide on social security registration cases. Nonetheless, the IMSS is reluctant to act proactively and change the requirements for applicants. The SSL does not need to be modified, because the word spouse is actually gender-neutral. The administrative procedures of the IMSS show the opposition of the federal government to acknowledge the rights granted to same-sex couples at the state level in Mexico City. If same-sex couples have to go through this legal process before a right can be acknowledged, they will incur in additional expenses that many citizens might not be able to afford. Moreover, time is of the essence in medical cases. A delay in a
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176 Mexican Institute of Social Security (IMSS). Notification number 35 01 60 61 9100/AV/1670, signed by Mr. Samuel Palafox Pichardo.
177 AMD. Grupo Formula. Ratifican amparo a matrimonio gay para que IMSS inscriba a cónyuge.
January 6, 2011. Mexico City, Mexico.
registration process could represent severe problems and could cause irreparable damage. It still remains to be seen whether any of these affected couples will end up suing the IMSS for a compensation of damages in a civil or criminal lawsuit.