Equality On Trial

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

December 20, 2013

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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

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