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Analysis: New Mexico’s Supreme Court holds same-sex couples have the right to marry

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New Mexico. Attribution: Wikimedia Commons
New Mexico. Attribution: Wikimedia Commons
Yesterday, in a short opinion, the New Mexico Supreme Court ruled unanimously that same-sex marriage is required by the state constitution, and that existing marriage laws in the state should be construed in a way that complies with the state constitution’s equal protection principles.

Because of the unique history of New Mexico’s marriage laws, the state supreme court agreed to resolve several issues stemming from earlier this year, when several counties began offering marriage licenses to same-sex couples. New Mexico is the only state that has no law explicitly banning or endorsing same-sex marriage. The only opinion interpreting the marriage statutes was a non-binding one issued by the state’s attorney general. He believed the statutes should be read as banning marriage for same-sex couples, though he also announced that the ban should be held unconstitutional. Due to the confusion over lack of clarity on state marriage law, some counties allowed same-sex couples to marry, based partly on reasoning from the Supreme Court’s June decision in United States v. Windsor, striking down Section 3 of the federal Defense of Marriage Act (DOMA.) Those marriage licenses led to the current challenge, when a lower court determined a ban would be unconstitutional under state equal protection law.

The state supreme court was asked first to interpret state marriage laws, to determine whether they only apply to opposite-sex couples. And if the laws ban marriage for same-sex couples, the court was asked to determine whether that’s constitutional and what standard of review to apply to laws affecting sexual orientation.

In summary, the court held that the current marriage laws should be read the way the legislature intended, and that means they apply only to opposite-sex couples and same-sex marriage isn’t allowed by statute. Then the court determined that the ban is a classification based on sexual orientation and under equal protection review, classifications on that type should be based on “intermediate scrutiny”, a form of heightened judicial scrutiny. Instead of gay plaintiffs bringing a lawsuit and having to explain why every rationale is invalid (the most lenient standard of judicial review), under intermediate scrutiny, the state defendants would have to explain how the law bears a substantial relationship to an important government objective. And under that standard, the court held the defenses for the ban don’t hold up, so the ban is unconstitutional.

Since the case didn’t involve an outright statutory ban of same-sex marriage, the remedy for the equal protection violation is that ““civil marriage” shall be construed to mean the voluntary union of two persons to the exclusion of all others. In addition, all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.” The court held that gender-neutral marriage licenses should be issued by all clerks in the state. And there was no time-line specified, so the ruling should apply immediately.

More below the fold…

The court avoided deciding whether same-sex marriage is a “fundamental right” deserving of the most rigorous judicial scrutiny, because it’s largely an open question in the states, and ultimately, the court held, equal protection analysis provides a better framework.

The equal protection analysis undertaken by the court pretty much follows the same outline as other marriage cases. The court first looked at the argument that in order to reach the equal protection, they need to determine if the law classifies a group of people, separating them in some way from other people who are “similarly situated”. Same-sex marriage opponents argue in this and several other cases that same-sex couples and opposite-sex couples aren’t similarly situated for purposes of marriage, purposes which include, according to their argument, responsible procreation and child-rearing. They point out that fertility “has never been” a requirement for marriage under New Mexico law, and even if procreation were the main purpose for marriage in the state, “opposite-gender couples who are incapable of naturally producing children, or who simply do not intend to have children, are not prohibited from marrying, and they still benefit from concomitant marital rights, protections, and responsibilities.” This creates a situation where similarly situated same-sex and opposite-sex couples are treated differently.

In fact, the court writes, the “purpose of the New Mexico marriage laws is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property, and their children, if they choose to have children. This purpose is self-evident from the structure of our laws.”

The court then addressed the level of scrutiny, first holding that the classification isn’t based on sex but sexual orientation: “The distinction between same-gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.” If the opposite were true, they suggested, there would have been no need to add sexual orientation to the state’s anti-discrimination law.

In order to decide that sexual orientation is a protected class under New Mexico law, the court has to determine if the class is relatively politically powerless and has suffered a history of discrimination. As the opinion points out, the opponents of same-sex marriage focused largely on arguing that LGBT people are politically powerful. And the question of whether LGBT people “are a discrete group who have been subjected to a history of purposeful unequal treatment is not fairly debatable.”

Same-sex marriage opponents had pointed to anti-discrimination laws and hate crimes statutes to argue that LGBT people are politically powerful enough, at least, to get results in the state legislature. But as the court succinctly noted, “[n]one of this legislation would have been required if the LGBT community was not a discrete group which has experienced a history of purposeful unequal treatment and acts of violence.”

And, the court notes, “political advocacy of the LGBT community continues to be seriously hindered, as evidenced by the uncontroverted difficulty in determining whether LGBTs are under-represented in positions of political power, because many of them keep their sexual orientation private to avoid hostility, discrimination, and ongoing acts of violence.”

On the question of “immutability” for purposes of the court’s analysis, “the question is whether the characteristic is so integral to the individual’s identity that, even if he or she could change it, would it be inappropriate to require him or her to do so in order to avoid discrimination?” The court held that yes, it would be inappropriate.

The arguments against same-sex marriage (for review under intermediate scrutiny) were the typical ones: “First, they argue that the governmental interestin promoting responsible procreation justifies the same-gender marriage prohibition. Second, they argue that the governmental interest in responsible child-rearing justifies depriving same-gender couples who marry from the benefits and protections of marriage laws. Third, they suggest that allowing same-gender couples to marry will result in the deinstitutionalization of marriage because people will spend a smaller proportion of their adult lives in intact marriages than they have in the past.”

The court rejected the “deinstitutionalization” argument based on the fact that evidence for this argument was not included in the record before the court, and because the intent of the argument is to invoke animus and “moral disapprobation” of homosexuality, as well as reliance on tradition – those have been rejected as invalid by the United States Supreme Court.

The “responsible procreation” argument was rejected: “Regarding responsible procreation, we fail to see how forbidding same-gender marriages will result in the marriages of more opposite-gender couples for the purpose of procreating, or how authorizing same-gender marriages will result in the marriages of fewer opposite-gender couples for the purpose of procreating. Thediscriminatory classification is also glaringly under-inclusive.” And if responsible procreation were the reason for a ban, infertile couples would also be banned from marriage, as well as those unwilling to have children. And same-sex couples responsibly have and raise children: “they necessarily [decide to have children] after careful thought and considerable expense, because for them to raise a family requires either lengthy and intrusive adoption procedures or assistive reproduction.”

And same-sex marriage bans hurt children: “Excluding same-gender couples from civil marriage prevents children of same-gender couples from enjoying the security that flows from the rights, protections, and responsibilities that accompany civil marriage.”

Since no laws need to be struck down after the decision, counties are free to provide gender-neutral marriage licenses. There is no stay or time limit for compliance with the court’s decision. It’s assumed counties will comply immediately. And the case involved only New Mexico law: there were no federal law or federal Constitutional questions. This means the court’s decision is unappealable. According to Marc Solomon of Freedom to Marry, the state legislature would be permitted to put the issue on the ballot for voters to decide, but activists are already in the state and hope to prevent any initiative. The legislature is controlled by Democrats.

Seventeen states and Washington DC now have marriage equality. Only a few remaining states ban same-sex marriage by statute alone; the rest have state constitutional amendments.

The case is Griego v. Oliver.

Thanks to Kathleen Perrin for this filing


  • 1. MichaelinFlorida  |  December 20, 2013 at 9:15 am

    This brings us to the {a little off topic) Virginia case. With Dems. sweeping the last election would there be anyone to contest a ruling in favor of marriage equality (i.e. prop 8)?

  • 2. Rob  |  December 20, 2013 at 11:09 am

    I asked exactly the same question after the VA elections. Who would contest a Fed Court decision (there a two cases pending) if the ruling if favorable to SSM? Who would have standing to challenge? If the ruling can't be challenged, it could legalize SSM in VA but not make it to the Supreme Court, which is what Boies and Olson thought they were getting when they took on the VA case.

  • 3. Stefan  |  December 20, 2013 at 11:11 am

    That's the speculation yes. Also, the district court has a Democratic appointed judge and is known for speedy decisions (it's nicknamed the Rocket Docket, as the average length of time between case filing and decision handed down is only 1 year). Given both these factors, it's likely Virginia will have the freedom to marry by the end of next year.

  • 4. Zack12  |  December 20, 2013 at 11:21 am

    It should also be noted that the VA is among the most draconian of all the bans. Gay and lesbian couples can't even draw up contracts to protect themselves in VA.

  • 5. Mike in Baltimore  |  December 20, 2013 at 12:02 pm

    Another plus is that Virginia is in the 4th Circuit, once known to be one of the most CONservative circuits, but now is middle of the road, and with a couple more appointments might be able to challenge the 9th as 'most liberal'. (There are no current vacancies at the Circuit Court level, but there are at least a couple of judges now serving who will soon be 'eligible' for 'Senior' status and/or retirement, although with the 'appointment for life' of Federal judges, there is no actual time frames that can be determined.)

    The other question, as has been brought up by several posters, is who would be eligible to appeal? An appeal by the Governor and/or Attorney General is, IMO, extremely unlikely. Who then might appeal, and do they have standing?

    All in all, then, Virginia could very easily have Marriage Equality by the end of 2014.

  • 6. Zack12  |  December 20, 2013 at 9:47 am
    You knew this was coming. I think the chances of this making it out of the legislature are next to none but I hope the LGBT community in NM is on its toes just to make sure.

  • 7. davep  |  December 20, 2013 at 10:17 am

    Check this out – Bill Sharer (the guy behind this effort to amend the NM State constitution) says this: "My constituents are very much in favor of marriage as it's been known in every culture, on every continent, in every era, and that's between one man and one woman". Nope, not even close, Bill. The idea of marriage being 1man1woman has only been around for a small fraction of the time and in a small fraction of the eras and cultures in which marriage has existed. What an idiot.

  • 8. Zack12  |  December 20, 2013 at 11:13 am

    That won't stop them though.

  • 9. davep  |  December 20, 2013 at 10:19 am

    Just wanted to chime in here and give a great big THANK YOU to P8TT / EoT for this article and all of the other decision analysis articles like this. I have learned sooo much from these.

  • 10. Gregory in SLC  |  December 20, 2013 at 10:41 am

    yes. Thank you Scottie! and Thank you Kathleen!

  • 11. sfbob  |  December 20, 2013 at 10:35 am

    "The purpose of the New Mexico marriage laws is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property, and their children, if they choose to have children. This purpose is self-evident from the structure of our laws."

    I don't think I have ever seen a clearer, more succinct definition of the purpose of civil marriage. The court's decision was truly superb in many respects but this was the winner.

  • 12. Dr. Z  |  December 20, 2013 at 12:31 pm

    Nice analysis. In addition, the court pointed out that "deinstitutionalization" is a circular argument. The opponents of marriage equality would need to point to a legitimate state interest that was advanced apart from "safeguarding" the definition itself, which of course they couldn't do.

  • 13. USA, New Mexico: GOP Thre&hellip  |  December 21, 2013 at 7:26 am

    […] And Scottie Thomaston at Equality on Trial analyzes the ruling: […]

  • 14. Policy and Legal Update &&hellip  |  December 23, 2013 at 7:21 am

    […] NEW MEXICO  •  On 19 December 2013, in Rose Griego, et al., v. NM Bernalillo County Clerk Maggie Oliver, the NM Supreme Court unanimously ruled that same-gender and mixed-gender couples, and their civil marriages, are guaranteed equal rights, protection, and responsibilities under the law, effective immediately.  The court rejected 3 arguments put forth by the opponents of equality:  (1) mixed-gender marriages benefit when same-gender marriages are banned and mixed-gender marriages suffer when same-gender marriages are allowed; (2) marriage requires procreation and procreation requires marriage; and (3) same-gender couples don’t raise children from prior marriage, fertilization, surrogacy, foster care, and/or adoption.  •  MEUSA Summary  •  News Source […]

  • 15. Skomas  |  April 11, 2014 at 11:59 am

    From where I come from, weddings are molsty at the end of the year as our school terms starts in January and long tern break In November and December. Anyway, most Chinese believes in Feng Shui and certain months are known as bad month for weddings. Which ever the month is, as long as the couples are happy, most important.Have a good day to you and happy blogging

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