In-depth look at how New Mexico won gay marriage

New Mexico is now the 17th state (plus D.C.) to legalize gay marriage, thanks to a ruling by the New Mexico Supreme Court.

Now it’s time to look at the ruling itself and figure out the arguments and implications. In this loooong post, I’ll go through the ruling paragraph by paragraph and pull out all the interesting bits.

The required: “I’m no attorney but…” Hey, the language is actually rather straightforward and not difficult to figure out.

gay marriage

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Untangling an untenable legal mess

Like the case in New Jersey not that long ago, the New Mexico courts were brought in to deal with an untenable situation.

In New Jersey, it was the inherent inequality of civil unions for gay couples, rather than real marriage. This situation was further complicated after the U.S. Supreme Court overturned Section 3 of DOMA this past June, which had prohibited the Federal government from recognizing legally enacted same sex marriages.

Since then, the Feds have made it clear that civil unions and domestic partnerships don’t rise to the level of ‘marriage’ for federal law. Hence civil unions had to be replaced with actual civil marriage.

New Mexico’s situation was different: The state Constitution has specific measures to say that discrimination on the basis of gender is illegal — and this rationale has been used several times to extend non-discrimination rights to LGBT New Mexicans.

Moreover, New Mexico’s general marriage law, as written, makes no reference to gender, a situation that was used by one county clerk in 2004 to attempt to extend marriage rights, but was turned back.

At the time, the 2004 lower court ruling and temporary injunction directed the NM state legislature to deal with the conflict — and they never did. Conservative groups, especially the Catholic Church, lobbied heavily every time the issue came up for consideration, and always successfully derailed any move towards marriage equality, even for something as unequal as a domestic partnership registry.

On top of this, back in August of this year, a Doña Ana county clerk began issuing marriage licenses, which later resulted in several counties joining voluntarily, others being ordered by lower courts to join in, and a whole bunch of county clerks — both pro- and anti-marriage equality — desperate to know what the law should actually be.

Although it was only a handful of counties, nearly 70% of New Mexico residents lived in a ‘marriage equality county’ — but lacked still lacked state recognition. We were in legal limbo.

Today’s unanimous NM Supreme Court ruling was unequivocal: LGBTs deserve equal protection under the law.

I’ve been reading through the ruling, and so much of it just jumps out at me as incredibly powerful language. This is a ruling that slams the homophobes and bigots again and again, and demolishes every one of their legal arguments. I’ll try to step through some of it here, based on the full text of the ruling. An easy-to-read version is also available on Casetext here.

It’s a very long post, so I’ve tried to break it up, yet remain somewhat chronological in the ruling text itself.

“All persons are born equally free”

That’s the thunderous opening of the unanimous opinion, written by Justice Edward Chavez:

All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.” N.M. Const. art. II, § 4.

These inherent rights, enjoyed by all New Mexicans, appear along with twenty-three other provisions known as the New Mexico Bill of Rights, which include the right to bear arms, freedom of speech, freedom of the press, freedom from unreasonable government searches and seizures, due process, and the equal protection of the laws. See N.M. Const. art. II, §§ 6, 10, 17, 18. When government is alleged to have threatened any of these rights, it is the responsibility of the courts to interpret and apply the protections of the Constitution.

Wonder if Loving v. Virginia, the SCOTUS case that ended interracial marriage bans in 1967 makes an appearance? It’s the second item cited, and Chavez directly connects gay marriage bans to the case.

Interracial marriages were once prohibited by laws in many states until the United States Supreme Court declared such laws unconstitutional and ordered an end to the discriminatory treatment. Loving v. Virginia, 388 U.S. 1, 12 (1967)(…) Consistent with our constitutional responsibility to determine whether legislation offends the New Mexico Constitution, the question we must answer is whether the State of New Mexico may decline to recognize civil marriages between same-gender couples and therefore deprive them of the rights, protections, and responsibilities available to opposite-gender married couples without violating the New Mexico Constitution.

As for the religious argument against legalizing gay marriage, Chavez dismisses it out of hand.

Although this question arouses sincerely-felt religious beliefs both in favor of and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution.

‘Intermediate scrutiny’

This has often been a sticking point in LGBT rights, the issue of what level of judicial scrutiny is applied when there are allegations of discrimination.

Historically for LGBT rights, the courts have been reluctant to apply “strict scrutiny” — which means the government has to prove there is a compelling reason for them to have a given law that results in discrimination against a minority. Mostly LGBTs get “rational basis,” which means “Did the government (esp. the legislature that enacted a given law) have a reason they felt was rational for passing the law?”

For example, SCOTUS and other courts kept applying rational basis in Don’t Ask, Don’t Tell cases, with the Defense Department permitted to assert, without any particular proof needed, that “morale and good order” would be at risk if gays and lesbians were allowed to serve openly.

On the other hand, one of the top reasons DOMA’s Section 3 was overturned was because there were U.S. Representatives and Senators on record as stating the reason they wanted to ban gays from marrying was because they felt gays were a moral abomination. That’s not a “rational” assertion — it’s a moral, religious judgment, and as such provides evidence that a law was motivated by animus and not for reasons such as ‘protecting families’ or ‘encouraging responsible procreation.’

Some more excerpts from the Summary:

Because same-gender couples (whether lesbian, gay, bisexual, or transgender, hereinafter “LGBT”) are a discrete group which has been subjected to a history of discrimination and violence, and which has inadequate political power to protect itself from such treatment, the classification at issue must withstand intermediate scrutiny to be constitutional. Accordingly, New Mexico may neither constitutionally deny same-gender couples the right to marry nor deprive them of the rights, protections, and responsibilities of marriage laws, unless the proponents of the legislation—the opponents of same-gender marriage—prove that the discrimination caused by the legislation is “substantially related to an important government interest.”

Substantially related and important government interest are key.

And yes, that ridiculous “marriage is for breeders only” argument is buried once and for all, not just once, but several times in the ruling:

The opponents of same-gender marriage assert that defining marriage to prohibit same-gender marriages is related to the important, overriding governmental interests of “responsible procreation and childrearing” and preventing the deinstitutionalization of marriage. However, the purported governmental interest of “responsible procreation and childrearing” is not reflected in the history of the development of New Mexico’s marriage laws. Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying. In addition, New Mexico law recognizes the right of same-gender couples to raise children.

The conclusion is obvious, based on these rationales:

(B)arring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

Now let’s take a walk through the tall grass of this ruling…

You can stop here if you like and will probably know all you need or care to know. But me, I’m never satisfied. So I’m going to head on into the ruling itself and look at the arguments and rationales.

As folks may remember, I’ve mentioned several times that New Mexico’s general marriage law is unaccountably gender-neutral. Plus there’s a state law requirement governing the required recognition of any marriage performed in any other jurisdiction — in America or internationally — subject to certain exclusions. These exclusions include incestuous or polygamous marriages, for example. They don’t list same sex marriages as an excluded type.

Interestingly, the unanimous opinion as written by Justice Chavez goes out of its way to point out the many other places in New Mexico law where marriage is defined as one male and one female — one example cites NM’s divorce laws, another cites the marriage application form — thereby creating the de facto ban on gay marriage.

Also, rightly so, the ruling acknowledges it was never the intent of the state legislature, through the occasional use of gender neutral language, to enact legalized same sex marriage.

Yet, the reason the ruling does this is so that rather than leave those gender-specific statutes in place and open to question, they too can be judged as a whole as to whether they pass Constitutional muster.

An important reason for this is because failure to deal with these questions could result either in more litigation, or possibly a state government opinion that although gays and lesbians have the right to marry in New Mexico, the state can otherwise still have and pass new laws intended to discriminate against them. Or simply withhold meaningful recognition altogether.

DOMA’s Overturning is the ‘One Ring to Rule Them All’

Citing the DOMA case before the Supreme Court, United States v Windsor, which resulted in Section 3 (the Federal ban on recognition) being over turned, the NM Supreme Court ruling goes on to say:

Even if we were to conclude that the gender-neutral language in Sections 40-1-1 and 40-1-10 authorizes same-gender marriages, we could not avoid the constitutional challenge raised by Plaintiffs. Plaintiffs “seek vindication not only of their constitutional right to marry, but their entitlement to all the essential protections and responsibilities attendant on marriage.” Interpreting our statutes to authorize committed same-gender couples to enter into civil marriage will grant them the rights and privileges available to opposite-gender married couples in approximately one thousand statutes and federal regulations that refer to a person’s marital status, thereby avoiding a constitutional challenge on that basis.

Procreation never was the purpose of marriage laws

The latest quasi non-religious “attempting to sound reasonable” legal argument promoted by the anti-equality lobby is because the state (or federal government) has an interest in promoting breeding, but only by married opposite-sex couples to exclusion of any other family situation or arrangement.

And yes, this is the bigots saying it should be the official government position that the naturally-born children of heterosexual parents are inherently superior to those conceived by other means, step-children, children of single parents, and of course children of gay and lesbian parents.

Fertility has never been a condition of marriage, nor has infertility ever been a specific ground for divorce. Beginning in 1884, a divorce could only be granted on specific grounds, which at the time only included “adultery, cruel or inhuman treatment and abandonment.”
(…)
Even assuming arguendo that procreation is the overriding purpose of the New Mexico marriage laws, same-gender and opposite-gender couples are still similarly situated, yet they are treated differently. 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.

And besides which, gay and lesbian families can and do have children, too:

In addition, just as opposite-gender couples may adopt or have children utilizing assisted reproduction, so too may same-gender couples. However, opposite-gender couples who adopt or have children utilizing assisted reproduction are not prohibited from marrying, and they and their families benefit from state-granted marital rights, protections, and responsibilities. Same-gender couples are prohibited from marrying, and they and their families are deprived of the rights, protections, and responsibilities available under our marriage laws, even if they choose to have a family by adoption or assisted reproduction.

In case THAT wasn’t clear enough:

Procreation is not the overriding purpose of the New Mexico marriage laws. 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.

More about that “intermediate scrutiny…”

The ruling then goes into a longish section explaining why the justices went with ‘intermediate scrutiny’ on this case rather than ‘strict.’ It has to do with the fact that the NM Constitution has a protection from discrimination based on gender, it doesn’t have one specifically with respect to sexual orientation.

This is where it gets a little complicated. Rather than including lots of complicated jargon and quotes, suffice to say the rationale is that while LGBTs are a discrete minority group that has historically suffered from discrimination, New Mexico lacks the legal framework and state Constitutional requirement to absolutely outlaw anti-gay discrimination under strict scrutiny requirements.

A little success does not equal no longer a suspect class or protected minority

With respect to the argument some of the homophobes have been floating, that because LGBTs are beginning to see success in securing rights, that means we have political power and therefore can no longer be considered a “suspect class,” the ruling has this to say:

Focusing on the political powerlessness prong is a reasonable strategy for the opponents of same-gender marriage because whether 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.
(…)
Refocusing on the contention that the LGBT community is not politically powerless, we recognize that they have had some recent political success regarding legislation prohibiting discrimination against them. However, we also conclude 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.

A history of discrimination and the matter of ‘lifestyle choice’

Again, these also form the basis of whether a finding of “intermediate scrutiny” is warranted: Has there been a history of discrimination against LGBTs and is sexual orientation an inherent characteristic of a person, not subject to choice?

To complete the analysis of whether intermediate scrutiny should apply, we must answer whether members of the LGBT community have been subjected to a history of discrimination and political powerlessness based on a characteristic that is relatively beyond their control.

The court answers that question in the affirmative, LGBTs have experienced a history of discrimination and political powerlessness.

One thing I find interesting is the ruling says it doesn’t actually matter if a characteristic can be changed, because religion is protected, and that absolutely is a matter of choice. However, the point is raised:

Instead, 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? We agree with those jurisdictions which have answered this question affirmatively regarding LGBTs.

Essentially, the ruling says that even if sexual orientation could be changed or chosen, it shouldn’t matter. It does go on though to say that still another reason for not finding for strict scrutiny is that while marriage itself is considered an important civil right, the question as to whether civil marriage itself is a fundamental right has not been addressed at any level in state or Federal courts.

I take this in part to mean exactly what it seems, but also in the sense of avoiding the whole slippery slope rationale. As in, “Well if gays can get married, then it’s a fundamental right for a man to marry his box turtle.” (Thanks, Rick Santorum!) The government does have an interest in prohibiting certain types of marriages — such as the laws establishing an age of consent. Or stating that the people involved must both be human adults.

What this leaves is the finding for “intermediate scrutiny” — in that gay and lesbian couples are in a situation substantially similar to that of straight couples. Committed monogamous relationship, intertwined financial and legal obligations, an interest in having shared civil rights as a couple, and sometimes the raising of children in families. Under the requirements of intermediate scrutiny, the government must prove it has at least an important reason to deny marriage rights (or any other established civil right) to an identified suspect class. (Strict scrutiny would require that reason to be judged compelling and unavoidable.)

Debunking the bigotry and homophobia

This is where the argument against same sex marriage and marriage equality rights always falls flat on its face. Unless one is lying and using debunked pseudoscience, such as with the Regnerus and Marks studies, there is zero harm to children being raised by gay and lesbian parents. And zero harm to straight couples.

Which of course doesn’t prevent the opponents of gay marriage from attempting to use exactly these arguments:

We have interpreted the argument of the opponents of same-gender marriage as suggesting that there are three governmental interests for prohibiting same-gender couples from marrying in the State of New Mexico. First, they argue that the governmental interest in 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.

However, this is quickly knocked down:

During oral argument, opponents admitted that they lacked evidence to show that allowing same-gender marriages would result in married couples divorcing at an increased rate. Because this contention is not supported by the evidence in the record, the contention is without merit.
(…)
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.

Booyah! In fact, the ruling goes out of its way to point out that childless same-sex couples have to go through far more trouble and expense to have children through medically-assisted reproduction or adoption — thereby being the very definition of “responsible.”

More on the positive benefits of marriage for same-sex couples, and the sheer illogic of suggesting that depriving marriage rights to gay and lesbian couples will result in “more responsible” child-rearing by hetero couples:

We fail to see how depriving committed same-gender couples, who want to marry and raise families, of federal and state marital benefits and protections will result in responsible child-rearing by heterosexual married couples. In the final analysis, childrearing for same-gender couples is made more difficult by denying them the status of being married and depriving them of the rights, protections, and responsibilities that come with civil marriage.

In closing

The ruling closes with this:

Having declared the New Mexico marriage laws unconstitutional, we now determine the appropriate remedy. We decline to strike down our marriage laws because doing so would be wholly inconsistent with the historical legislative commitment to fostering stable families through these marriage laws.

Again, this bit is important because striking down all the marriage laws would not only leave a legal mess, it would invite years and decades of political can-kicking and mischief. I also see a subtle slam against those who try to claim that gay marriage bans are for the good of ‘stable families.’

You want stable families and assert marriage is supposed to promote that? Then extend civil marriage rights to the gay and lesbian couples and their families, which already exist, but until this ruling did not have the legal protections of marriage.

Instead, “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. Therefore, whether they are contained in NMSA 1978, Chapter 40 or any other New Mexico statutes, rules, regulations or the common law, whenever reference is made to marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower or any other word, which, in context, denotes a marital relationship, the same shall apply to same-gender couples who
choose to marry.

And that, my friends, is the top-to-bottom housecleaning of New Mexico’s entire body of “statutes, rules, regulations (and) the common law” — to ensure that effective immediately, there are no loopholes or inconsistencies or areas lacking clarity in established state laws and jurisprudence.

The last few paragraphs establish a court order that all laws touching upon marriage, including the licenses, shall from now on be gender-neutral. And further order all New Mexico courts to uphold compliance with these orders.

Reactions

NM Doña Ana County Clerk, Lynn Ellins (KOAT.com)

NM Doña Ana County Clerk, Lynn Ellins (KOAT.com)

Interviewing Lynn Ellins, the county clerk who started all this::

Lynn Ellins, the county clerk who started the movement, told KOB he expected the New Mexico Supreme Court to come down with the ruling and that he was happy with the outcome.

Obviously when I said the constitution required me to do this I was correct and the court has backed me up on that and other county clerks as well,” Ellins said.

NM Senator Sharer apparently handles snakes, too, in his spare time. Why? Apparently to see if anyone can tell them apart.

NM Senator Sharer apparently handles snakes, too, in his spare time. Why? Apparently to see if anyone can tell them apart.

Meanwhile, State Senator, amateur snake-handler and history de-gayer, Bill Sharer (R-Farmington) remains desperate to re-discriminate Teh Gays:

Republican state senator Bill Sharer, of Farmington, is already working on a constitutional amendment to overturn the court’s decision. Such an amendment would require a majority of legislators. Then, voters would get to decide whether or not to change the constitution.

Fortunately, that amendment has about as much chance of passing the NM state legislature as a marriage equality bill did for the last ten years. I feel certain a great many New Mexico legislators are breathing a huge sigh of relief that the decision was taken out of their hands, so that none of them has to be on record.

Plus, with the Democratic-majority state House and Senate, there’s essentially zero chance of a state constitutional amendment like this passing in the first place.

New Mexico’s Republican Governor Susana Martinez responded thus:

“My family (believes) marriage is between a man and a woman, and I’ve said that all along,” said Gov. Susana Martinez, in response to the ruling. (…) I’m confident that most New Mexicans believe, like I do, that it should have been settled by a vote of the people. Instead, the Supreme Court stepped in and rendered their decision.”

Um, yeah, because letting the general population of those who bother to turn out to vote has been a terrific way of ensuring civil rights and equal protection under the law for historically oppressed minorities. Riiiiiight.

In fact, Justice Chavez and the unanimous ruling of the New Mexico Supreme Court had something to say about that, too:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Damn right.


Published professional writer and poet, Becca had a three decade career in technical writing and consulting before selling off most of her possessions in 2006 to go live at an ashram in India for 3 years. She loves literature (especially science fiction), technology and science, progressive politics, cool electronic gadgets, and perfecting Hatch green chile recipes. Fortunately for this last, Becca and her wife currently live in New Mexico. @BeccaMorn

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