Where are we going with discrimination?

| July 6, 2017

Mexico’s legal system is still young and struggling to work out how to face the main issues in today’s society. One of them is discrimination. Today, “discrimination” is a strong word with cultural and legal consequences developing into other concepts like “micro-aggressions” or “privileges” which now have a very different meaning than the one they had before.

There are many ways to approach this matter, and the answers have a direct relationship with the axiological vision each legal system upholds. Here we are not referring only to the technical and procedural questions of the matter, but also to more profound issues from a philosophical point of view: What does it mean to be “discriminatory”? Is it wrong to “discriminate”? Furthermore, legal resolutions have an intrinsic union with the culture and worldview of each society, affecting each other in an almost unlimited manner. Thus, any solution proposed in this topic will have repercussions not only in one concrete case, but also in the future generations.

With this in mind, we should analyze how Mexico’s law is addressing the problem. The big issue here is that the administrative and legislative instances are only moving with general inertia and half-hearted actions without making any transcendent proposal within their competence. In this scenario, the courts are the ones taking the real decisions, especially the Supreme Court of Justice.

The jurisprudence about “discrimination” has rapidly evolved in the last five years since the reform of Article 1 of the Mexican constitution, and it is an ethical and social obligation for any lawyer to perform a detailed analysis of this, particularly concerning new laws since 2015 regarding marriage and family. And this should be done, from a serious philosophical perspective.

The latest of these so-called advances was the decision of the Supreme Court of Justice declaring that any law prohibiting homosexual persons from adopting is discriminatory and, therefore, unconstitutional[1]. Even if this resolution is coherent with the recent jurisprudential developments, it is reasonable to question whether this new structure is consistent with the overall Mexican philosophical, legal and social background.

This short verdict’s first statement declares that sexual orientation is not relevant for the formation of a family or the adoption of a child. The second phrase states that any prohibition in this matter is unconstitutional. However, it seems that this declaration is done carelessly, as the written opinion of the Supreme Court’s Justices only takes into account legal definitions and not the real life of real Mexican families or even the opinion of experts in related fields, like psychology, medicine or social development. This lack of interdisciplinary views pauperizes the resolution and its utility for the development of the Mexican legal system.

A determination regarding the content of the Court’s resolution would need a deeper study of the context and various external topics (as explained above), but we can try to analyze it more closely and to provide some comments.

This case began with a denouncement from the State of Campeche, located in the southeast of Mexico, and ended with a Supreme Court general constitutional interpretation valid for all the federation. This means that, the State of Nuevo León, located in the north of the country with a different legal context and structure, must declare any Act containing an article limiting adoption rights for same sex couples inapplicable. This exemplifies the contradiction of the decision. As it was based on legal definitions at the State level, why should it then apply to the whole country? Is it coherent with the entity of a federation as Mexico is declared to be in article 40 of its constitution[2]?

This is not an easy topic because it involves two core concepts of our current society. First, it involves the general prohibition of discrimination, a general parameter to achieve a better civilization with equal opportunities for everyone. Second, it involves the upholding of the power of the people opposed to tyrannical forms of government. However, excesses can be done also in the uncritical defense of these noble principles.

To avoid discrimination, legislators and courts are not only giving equal opportunities to all, but they are denying differences exist, and they forget that, sometimes, it is not in the best interest of society to abolish them. Furthermore, too many seem to forget that a law cannot “create” reality. If a regulation stated that humans could live and breathe underwater, it would not become reality.

On the other hand, to give such a great power to the public opinion (“the empowerment of the masses”) might not always be the best decision. Here we are faced with a manifest contradiction of the Mexican judiciary. It affirms the democratic government and the relevance of the public perception of concepts like “family”, but at the same time it acts as a lawmaker without letting the elected representatives of the people work out how the law should undertake the conflicts that are presented by today’s society.

Should these kinds of decisions be taken by the Courts or by the Legislatures? It is the function of the judiciary to decide what is the will of the people?

As for the specific resolution of the Supreme Court regarding adoption for homosexuals, it would be incredibly naïve to accept or reject this kind of decisions without critical analysis. This analysis should take into account the overall Mexican philosophical, legal and social background.


[1] Resolution issued by the Mexican Supreme Court of Justice on September 2016: “Adoption. The prohibition to be considered as adoptive parent based on the sexual orientation is unconstitutional.” (Registry number 2 012 586)

[2] Article 40. It is the will of the Mexican people to constitute itself in a representative, democratic, secular, federal republic, conformed by free and sovereign States in all matters concerning its interior regime, (…)

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