The New Mexico Supreme Court ruled today in a unanimous decision in Greigo v. Oliver, Docket No. 34, 306, 2013 WL 6670704, that the state’s marriage law denies same-sex couples the right to marry and thus violates the Equal Protection Clause of the state’s constitution. Wrote Justice Edward L. Chavez for the court: “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.” The court’s ruling was generally anticipated in light of the tone of the oral arguments and the rulings by several New Mexico trial courts over the summer directing county clerks to issue marriage licenses to same-sex couples, reflecting the momentum towards marriage equality generated by the U.S. Supreme Court’s June 26 decision in U.S. v. Windsor, which invalidated Section 3 of the federal Defense of Marriage Act and led the federal government to recognize state-sanctioned same-sex marriages for purposes of federal law.
The New Mexico Constitution gives the state’s supreme court “superintending control” over the lower courts, which the court has construed as authorizing it to take appeals directly from the trial courts, by-passing the intermediate court of appeals, “where it is deemed to be in the public interest to settle the question involved at the earliest moment.” The sudden outbreak of marriage equality activity at the county level in the months following the Windsor ruling persuaded the court that it was appropriate to grant a motion that had been filed by the New Mexico Association of Counties, asking the court to definitively resolve the question of same-sex marriage and not wait for the issue to percolate up through the normal appeals process. The court, noting that some counties were giving licenses and others were not, characterized the current situation as “chaos statewide”, justifying the court stepping in to issue a definitive ruling.
The first question the court had to address was whether New Mexico’s marriage statutes already allow for same-sex marriage. This was actually a serious question, because many of the operative provisions of the statutes are gender neutral, and New Mexico has never enacted either an explicit statutory or constitutional ban on same-sex marriage. However, the court said that statutes must be construed according to the intent of the legislature, and it found that the legislature had not intended to authorize same-sex marriages. This conclusion was bolstered by references to “husband” and “wife” in various other statutes, and by provisions governing the official forms to be used in administering the marriage laws, which use gendered language to describe the parties. The court pointed out that even if the marriage statute itself was gender-neutral, many other statutes and regulations were not, so it was necessary to determine whether same-sex couples were entitled to the same rights and benefits and subject to the same responsibilities as different-sex couples for all of those other laws.
The plaintiffs had argued alternatively that denying marriage to same-sex couples violated equal protection and deprived them of a fundamental right. The court decided to begin its analysis with the equal protection argument, and abstained from ruling on the fundamental right argument as “unnecessary.”
The first step for equal protection was deciding whether the plaintiff same-sex couples are “similarly situated” to different-sex couples who are allowed to marry. Opponents of same-sex marriage argue that same-sex couples are not similarly situated to different-sex couples because same-sex couples cannot procreate by copulating with each other. Rejecting this argument, Justice Chavez wrote, “Fertility has never been a condition of marriage, nor has infertility ever been a specific ground for divorce.” But even if one assumed that “procreation” was “an overriding purpose” of the state’s marriage laws, “same-gender and opposite-gender couples are still similarly situated, yet they are treated differently.” Different-sex couples who can’t procreate are not prohibited from marrying, he pointed out, and they still enjoy all the same rights and benefits of marriage as couples who can. Same-sex couples can adopt or, in some cases, use alternative reproductive technology to have children, just as some different-sex couples do.
But the court decided that these procreation arguments are a bit beside the point, because, in its view, the purpose of the state’s 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,” and the court found this purpose as “self-evident from the structure of our laws.” As to this purpose, there could be no question that same-sex and different-sex couples are similarly situated. The court noted that the same conclusion had been reached by the highest courts of California, Connecticut, and Iowa.
The court rejected the plaintiffs’ argument that this case was about sex discrimination and thus should invoke “strict scrutiny” under the state’s Equal Rights Amendment, which expressly forbids sex discrimination. The court went on at some length distinguishing sex discrimination from sexual orientation discrimination, and accepted the argument that the exclusion of same-sex couples from marrying is not sex discrimination because both men and women are equally prohibited from marrying members of their own sex. Instead, the court focused on sexual orientation as the grounds of discrimination. “Many courts that have considered the issue have applied the equal protection analysis in same-gender marriage cases based upon sexual orientation, not gender,” wrote Justice Chavez. “Our analysis of sex discrimination cases has been gender-based, scrutinizing the historical discrimination against women.” Focusing on this as a sexual orientation discrimination case, the court had to decide whether sexual orientation discrimination should be subjected to strict scrutiny, intermediate review, or the deferential rational basis standard, and opted for the intermediate approach.
Here the court confronted the argument that gays have now become such a politically powerful group that it is inappropriate for the courts to presume that a government policy disadvantaging gay people is unconstitutional. While acknowledging the significant progress that gay people have made in winning political battles, the court nonetheless 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.” The court alluded to the phenomenon of the closet as being an impediment to gay political organizing, and the continuing role of societal prejudice and anti-gay violence in deterring people from coming out. “It is reasonable to expect that the need of LGBTs to keep their sexual orientation private also hinders or suppresses their political activity,” he wrote, also referring to gay referendum losses such as Proposition 8 and the Colorado anti-gay Amendment 2, both of which were eventually invalidated by the Supreme Court.
The court summarized recent marriage equality legislative and litigation developments, but from the perspective of showing what a long distance remains to complete equality, in light of the small number of states that have so far legislated for same-sex marriage and the fact that a majority of the states (and the federal government) have not yet passed laws banning discrimination against LGBT people.
The court found “a history of discrimination and political powerlessness based on a characteristic that is relatively beyond their control” to be more salient in determining the appropriate standard for judicial review, and asserted that “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,” and was not questioned by the opponents in this case. That was sufficient for the court to embrace intermediate scrutiny, under which a discriminatory government policy is presumed unconstitutional and the burden is on those who seek to justify the policy to show that it advances an important state interest.
The court then rejected all the arguments put forward by the opponents, both the state and various organizations that filed briefs supporting the state’s position. Those arguments were the usual three: promoting responsible procreation, supporting responsible child-rearing, and preventing “deinstitutionalization of marriage” that opponents predict would occur if same-sex couples are allowed to marry. As to the first, Chavez wrote, “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.” Questioning what the opponents mean by “responsible procreation,” the court observed that “when same-gender couples decide to have children, they necessarily do so after careful thought and considerable expense, because for them to raise a family requires either lengthy and intrusive adoption procedures or assistive reproduction.” Interestingly, this very same observation was cited by the New York Court of Appeals as justifying not extending marriage to same-sex couples because they would not “need” the societal support provided by marriage in order to provide a stable home for their children. To the New Mexico Supreme Court, it was an indication that same-sex couples are likely to take having children much more seriously than different-sex couples, meaning that the responsible procreation argument was ridiculous. In this sense, gays are the ultimate responsible procreators!
As to child-rearing, the court cited voluminous evidence of studies supporting the abilities of same-sex couples to raise children well, and noted that New Mexico law already supports same-sex couples as parents through its interpretation of the Uniform Parentage Act, most recently in the 2012 Chatterjee decision on co-parent custody. “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,” Chavez commented. “In the final analysis, child-rearing 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.” The court also pointed out that the children whom same-sex couples are raising are disadvantaged when their parents are deprived of marital status, and that the associated burdens and ineligibility for government benefits is “inequitable.” “There is nothing rational about a law that penalizes children by depriving them of state and federal benefits because the government disapproves of their parents’ sexual orientation,” he exclaimed.
The court quickly dismissed the argument that allowing same-sex couples to marry will lead to “deinstitutionalization of marriage,” that is the contention that marriage itself will be diminished and fewer different-sex couples will want to get married as a result. There was no evidence introduced that this has been the result in jurisdictions where same-sex marriage has been allowed, and the argument struck the court as akin to saying that the state has a right to exclude same-sex couples from marrying because it disapproves of same-sex couples on grounds that have been ruled out by such U.S. Supreme Court decisions as Romer v. Evans and Lawrence v. Texas.
As a remedy, the court ruled that New Mexico statutes should be interpreted to allow same-sex marriages and to afford such marriages all the rights and benefits given to different-sex marriages. “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.” The court also ordered that county clerks use “gender neutral language” in the application and marriage certificate forms. Acting in its superintending role, the court ordered the lower courts “to mandate compliance with the holdings and rationale of this opinion.”
So, it’s done. New Mexico is now the 17th state to embrace marriage equality on a statewide level. Since county clerks in 8 counties have been issuing marriage licenses for several months, and about 1400 marriages have already taken place, New Mexico should probably be given pride of place as the 16th state, since the first same-sex marriages in Illinois did not take place until the past few weeks pursuant to federal court orders to allow some early same-sex marriages due to medical exigencies, with most same-sex couples who want to marry having to wait until either June 1, 2014, or an earlier date if the Illinois legislature decides upon reconvening in January to move the date up. With the addition of New Mexico and, soon, Illinois, the march of marriage equality will embrace about 40% of the nation’s population, building towards the critical mass that will support an eventual U.S. Supreme Court victory when one or more of the 40+ pending marriage equality cases finally gets to the nation’s highest tribunal. Since this case was decided entirely on state constitutional grounds, there is no basis for the state to appeal this ruling any further.
Because several cases ended up getting folded into the appeal to the New Mexico Supreme Court, a small army of lawyers was involved in representing the various plaintiffs, the state, and “friends of the court” who filed numerous briefs. The LGBT organizations directly involved in representing plaintiffs include the National Center for Lesbian Rights and ACLU’s national LGBT rights project. The ACLU of New Mexico was involved in representing the local plaintiffs, with several cooperating attorneys from New Mexico. The flood of amicus briefs is too numerous to list, but it is worth giving particular note to briefs filed on behalf of various professional associations that the court cited to support its conclusions about same-sex couples as parents. There were briefs from New Mexico municipalities, professors from the state’s law school, and a wide range of LGBT rights organizations in the state, as well as Gay & Lesbian Advocates & Defenders (GLAD), which was active in the successful marriage equality litigation in several New England states.