“Find a seed and plant it/Love will make it grow”
Ruling in Griego v. Oliver, a suit brought by six couples, the New Mexico Supreme Court unanimously ruled on December 19, 2013, that the state constitution’s equality guarantees require the state to let same-sex couples marry and have the same attendant rights New Mexico affords to different-sex couples. This brings to seventeen the number of states with marriage equality, a full third of the nation’s states, plus the District of Columbia.
Relying on various indications of legislative intent, the court held that New Mexico’s marriage statute restricted marriage to different-sex couples (despite its facial gender neutrality). It then considered whether that restriction violated the state constitution’s equal protection and due process guarantees.
The Court’s due process fundamental rights discussion was a bit perplexing. The defenders of the marriage exclusion claimed, as opponents of marriage equality usually do, that the right to marry is the right to marry a person of a different sex, so that the plaintiffs were supposedly asking for recognition of a ‘new’ “right to marry a person of the same gender.” The court apparently rejected this move, which tried to build the identities of the parties claiming the right into the definition of the right. Instead, the court asserted that “that the correct question is whether the right to marry is a fundamental right requiring strict scrutiny[.]” This the court said was a “difficult question.” Even though the New Mexico supreme court had already noted early on that the plaintiffs were pressing arguments under the state constitution only, not the federal Constitution, the court proceeded to survey federal decisions by the Supreme Court of the United States (SCOTUS) to concluded that SCOTUS had not answered whether the right to marry is a fundamental one requiring strict scrutiny or not. The New Mexico court never explains the relevance of this federal law question to the state law issue before it. (And note: Although SCOTUS has not used the magic words “fundamental right”/“strict scrutiny” in its marriage cases I don’t think this is reasonably in question. I won’t go into a full analysis here, but will note that Loving v. Virginia (1967) expressly called the right to marry a “fundamental freedom,” language the New Mexico Supreme Court did not quote or attempt to parse.)
Ultimately, the New Mexico Supreme Court did not need to resolve the right to marry issues because it concluded that the marriage exclusion violated the state constitution’s equal protection guarantee. The plaintiffs had argued that the marriage exclusion amounted to both sex discrimination and sexual orientation discrimination. Following the California Supreme Court’s 2008 decision, the New Mexico court gratuitously denied that “that the marriage statutes at issue create a classification based on sex.” In neither case did the state supreme courts need to address this, because they concluded that the challenged marriage exclusions amounted to unconstitutional sexual orientation discrimination (against lesbigay persons and/or same-sex couples). The conclusion also rested on the facile notion that men and women had the same rights under the exclusion: the right to marry a person of the same sex. The U.S. Supreme Court could have viewed Virginia’s marriage laws as giving white and black people the same rights (to marry a person of the same race), yet it rejected this “equal applicability” argument in Loving. Moreover, the New Mexico court’s reasoning on this point is curiously in tension with its recognition here in Griego that this very court had earlier held “that same-gender couples have custody rights to children under the New Mexico Uniform Parentage Act because, among other reasons, ‘it is against public policy to deny parental rights and responsibilities based solely on the sex of either or both of the parents.’” (emphasis added, citation omitted)
Fortunately, the (lack of) sex discrimination reasoning did not ultimately matter because the New Mexico Supreme Court held that sexual orientation discrimination is subject to intermediate scrutiny under the state constitution and that the marriage exclusion could not survive that level of scrutiny. The court refused to adopt the most deferential standard of judicial review (which would have upheld the marriage exclusion if it had merely a “rational basis”), in part because the fact that “same-gender couples (the LGBT community) are a discrete group who have been subjected to a history of purposeful unequal treatment is not fairly debatable.” Moreover, the court concluded “that effective advocacy for the LGBT community is seriously hindered by their continuing need to overcome the already deep-rooted prejudice against their integration into society, which warrants our application of intermediate scrutiny in this case.” Accordingly, the court asked whether the marriage exclusion was “substantially related to an important governmental purpose.”
The court understood the defenders of the marriage exclusion to be arguing that it advanced governmental interests in “responsible procreation,” “responsible child-rearing,” and avoiding “the deinstitutionalization of marriage.” The court rejected the latter contention for lack of evidence that whether or not different-sex couples continue to marry has anything to do with whether same-sex couples are allowed to marry (and because to the extent that the argument was based in moral judgments or tradition, it was insufficient to justify the discrimination).
The court also rejected procreation and child-rearing as justification for the marriage exclusion. They were not reflected in the state’s marriage laws, which instead were about supporting the commitments of couples and any children they might wish to have. Different-sex couples were not required to be able or inclined to procreate or raise children, and same-sex couples are legally entitled to and in fact raising children, ably and devotedly, in New Mexico and across the country. (The court did not even deign to address the claim some courts, like those in New York and Washington state had accepted, that marriage discrimination was acceptable because different-sex couples can accidentally get pregnant but same-sex couples could not.) Although the court had invited interested parties to participate by filing amicus briefs, “[t]he supposed justifications for the discriminatory legal classification [offered there] are categorically at odds with the comprehensive legislative scheme that is intended to promote stable families and protect the best interests of children. Denying same-gender couples the right to marry and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage violates the equality demanded by the Equal Protection Clause of the New Mexico Constitution.”
[edited 11:28 p.m. PST Dec. 19, 2013 to correct two typos and specify second Loving reference]