Through the Looking Glass

Latin America, Same-Sex Marriage, and Separation of Church and State

Recent legal changes in Mexico and Argentina advance gay and transgender rights, but also fortify secular governance, writes Jacqueline Nolley Echegaray.

Una mujer con una bandera de arco iris durante una manifestación afuera de la Suprema Corte en la Ciudad de México, cual votó el 16 de agosto, 2010 para confirmar una ley permitiendo las adopciones por parejas del mismo sexo en dicha cuidad. (AP/Miguel Tovar)
Una mujer con una bandera de arco iris durante una manifestación afuera de la Suprema Corte en la Ciudad de México, cual votó el 16 de agosto, 2010 para confirmar una ley permitiendo las adopciones por parejas del mismo sexo en dicha cuidad. (AP/Miguel Tovar)

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The recent decision by Mexico’s Supreme Court to uphold a law passed late last year allowing married, same-sex couples in Mexico City to adopt children has some observers asking: is Mexico more tolerant than the United States?

What might have seemed implausible as recently as two years ago is beginning to sound like a reasonable question. The adoption ruling was the third landmark decision affirming the expansion of rights for lesbian, gay, bisexual, and transgender people in Mexico within a span of just two weeks. The first, on August 5, declared same-sex marriage constitutional. Five days later the court ruled that same-sex marriages performed in Mexico City must be recognized everywhere in the country. Less than one week later the adoption verdict came through.

The decisions in Mexico contrasted sharply with a series of state court rulings in 2008 and 2009 in California, which first granted, and then denied, same-sex couples the right to marry in that state. Both countries undoubtedly have a long way to go to extend full legal rights to their gay, lesbian, and transgender citizens. And equality is not achieved through policy change alone.

Society itself must change at its most fundamental level—as our own long, as-yet incomplete history fighting for civil rights, gender equality, and other social justice issues in the United States demonstrates. But the recent Supreme Court decisions in Mexico, along with similar changes taking place elsewhere in Latin America, herald progress that isn’t only happening in the policy arena. They are also advancing a foundational tenant of secular society: separation of church and state.

It may come as a surprise to many people north of the border—including many Latinos—but this month’s flurry of decisions affirming same-sex couples’ human rights in Mexico City demonstrates only the most recent advances in what may now fairly be considered a regional trend toward expanding LGBT rights and secular governance.

Current efforts to legalize same-sex marriage in several countries represent a significant challenge to regional traditions and norms for a region whose machista culture is infamous—but still much celebrated—and in which extremely conservative, fundamentalist religious forces have enjoyed practically unquestioned access to policymakers for over 500 years. Backlash against new laws extending marriage rights to same-sex couples has already begun, particularly in Mexico and Argentina, the two countries where change has been most sweeping.

The lawsuit challenging Mexico City’s law permitting marriages and adoption by same-sex couples was filed at the request of none other than President Felipe Calderon, who instructed Mexico’s attorney general to file the case immediately upon the approval of the law. Calderon argued that extending these rights to same-sex couples “posed a threat to traditional families and [to] the procreation of children.” Not only did Calderon lose, but his plan backfired, as the wording of the Court’s decision may make it much more difficult for individual states to challenge the federal mandate to accept same-sex marriages performed in the capital.

The rancor in Mexico ratcheted up even more when Cardinal Juan Sandoval Iñiguez, the highest-ranking Catholic prelate serving in the diocese of Guadalajara (Mexico’s second largest city), accused Mexico City’s mayor of bribing Supreme Court justices to vote in favor of rights for same-sex couples. The mayor sued Cardinal Iñiguez for defamation when the cardinal refused to retract his allegations, instead adding “check their bank accounts” when asked if he had any proof to backup his claims.

The Supreme Court voted unanimously to censure Iñiguez, whose comments—which included crude slurs against LGBT people—stunned many in Mexico, where the separation of church and state is highly valued in principle, if not always in practice. Iñiguez’s comments, rather than rallying support, effectively threw a critical spotlight on the Catholic Church’s influence over policy making in Mexico. And supporters of the court’s decision, including Mexico City’s mayor, are meanwhile enjoying public vindication.

Argentina has a similar story. It became the first Latin American country to legalize same-sex marriage nationally in July, and some believe that the fervor with which President Cristina Fernández de Kirchner and her husband ex-President and current member of parliament Nestor Kirchner are fighting for gay rights stems primarily from a desire to advance their long-running battle with the Catholic Church, rather than out of concern for the gay community’s rights.

Catholicism in Argentina, unlike in Mexico, is constitutionally designated as the country’s official religion. But that historically privileged relationship notwithstanding, Fernández de Kirchner has called the Church’s attitude toward the legalization of same-sex marriage reminiscent of “medieval times and the Inquisition.”

Gay rights in both countries are benefiting from highly politicized debates between religious leaders and government officials. And similar battles over same-sex marriage appear imminent in Chile and Brazil, where the Catholic Church’s presence is also strongly felt. Abortion in Chile is illegal under all circumstances—even if deemed medically necessary to save the life of the mother—and divorce only became legal in 2004. The Church in Brazil, the nation with the most Catholics on earth, decided to excommunicate the mother and doctors of a 9-year-old girl who terminated her pregnancy after being raped by her stepfather and impregnated with twins.

The outcome of efforts to expand LGBT rights in Chile and Brazil, where the Church’s traditional influence on social policy is as strong as anywhere in the region, may prove to be particularly instructive with regard to both the future of gay rights and the prospects for secular governance in the region.

But progress in the adoption of policies affirming the human rights of gay, lesbian, transgender, and bisexual people should not be misconstrued as reflection of a paradigm shift on homosexuality within Latin American society as a whole. Acceptance of gays and lesbians in Latin America is on the rise, especially among the region’s younger generation, but this change in attitude is still limited in its scope.

Human Rights Watch reported last year in “Not Worth a Penny: Human Rights Abuses against Transgender People” that attacks against transgender men and women are commonplace. This is true throughout Central America and in other parts of Latin America, as well. And trans people often suffer violence at the hands of police, who generally enjoy absolute impunity for crimes committed against trans people and other “undesirables.” As captured by the title of the report, transgender people are simply considered worthless.

Gay and transgender people elsewhere in Latin America continue to face discrimination, usually with no legal protections if they are fired from their jobs or otherwise discriminated against for being gay. As the BBC’s correspondent in Mexico City put it after noting the remarkable extent to which gay and lesbian people can be seen expressing affection in downtown Mexico City, “the difference between Mexico City and the rest of the country is abysmal.”

According to Javier Corrales, professor of political science at Amherst, “the changes currently taking place in Latin America notwithstanding, homophobia is deeply rooted” in the region, and it would therefore be a mistake to think that recent advances will succeed in “overcoming centuries of imposed hetero-normativity.”

Policy change, whether in the United States or elsewhere, is surely only the first step in a long road toward full equality for lesbian, gay, bisexual, and transgender people—especially because, in the case of Latin America, such change is scattered over half a dozen or so highly diverse countries in a large region. Nevertheless, recent policy changes in Latin America constitute a crucial step—one with the potential not only to advance equality in law, but also to fortify the practice of secular governance for decades to come.

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Jacqueline Nolley Echegaray is Mesoamerica Program Coordinator at Just Associates.

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