• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Towleroad Gay News

Gay Blog Towleroad: More than gay news | gay men

  • Politics
  • Health
  • Travel
  • Gay Pride
  • Music
  • Sports
  • Law/Justice
  • Celebrities
  • Men
  • Space
  • Science
  • Gay Iconography
  • Madonna
  • Books
  • Monkeypox
  • Film/TV

New Mexico Supreme Court’s Marriage Equality Decision: An Analysis

Ari Ezra Waldman December 19, 2013

Court_nm

BY ARI EZRA WALDMAN

New Mexico became the 17th marriage equality state today when the state's supreme court declared marriage discrimination unconstitutional. It was a unanimous ruling and one that was based on legal concepts with which we should all be familiar: equal protection, intermediate scrutiny, state interests, and "responsible procreation".

NMFLAGRegular readers of Towleroad's law column already know the basics: The constitution–in this case, a state constitution–guarantees equal protection of the law. Denying marriage licenses to certain individuals simply because of their sex or sexual orientation is unequal treatment that the state has to justify. Because the LGBT community has long been a victim of institutionalized and insidious discrimination, the state has a high burden to meet, a burden we call "intermediate scrutiny." The supposed justification that restricting marriage to opposite sex couples prevents accidental children out of wedlock is no justification for discrimination because marriage has never had anything to do with raising children. Because the state cannot meets its burden, the discrimination is unconstitutional. Gays can marry.

It is remarkable that this legal narrative has become so simple, so obvious, so matter-of-fact that we can summarize it in a paragraph and move on. Ten years ago, it was a theory a few of us deeply believed in. But it has become as airtight a legal doctrine as any I know. Today's decision from the New Mexico Supreme Court reinforces that view. It also highlights the impact the Supreme Court's recent DOMA decision (Windsor v. United States) will have on the next generation of marriage cases.

Follow me AFTER THE JUMP for a more detailed analysis.

New Mexico is a unique case in the marriage wars. It's been slow to join the marriage equality club, but it never really had an explicit law banning same-sex marriage. Virginia, for example, has a state constitutional provision banning both in-state same-sex marriages and preventing the recognition of out-of-state same-sex marriages. New Mexico, on the other hand, had layered marriage laws that, taken together, made same-sex marriage impossible. For example, its statutes included gender-specific language, referring to "male applicant" and "female applicant." From this and other facts, the court concluded that the legislature's intent had always been to permit opposite-sex marriages but not same-sex ones.

CountiesOnce it was clear that New Mexico banned same-sex marriages, the court had to determine if doing so was constitutional. And although the case was based on state law, the arguments and legal doctrines were all remarkably similar to their federal counterparts.

And so the rest of the case sounds a lot like the substantive parts of Perry v. Brown, the Prop 8 case. The plaintiffs in New Mexico argued that they are just like opposite-sex couples: committed, in love, desirous of the state recognition and benefits associated with marriage. They, therefore, should be treated equally.

They also argued that, as members of the LGBT community, they had been subject to discrimination and had long been disfavored under the law, thus requiring the court to be extra skeptical of any state law that adds to that discrimination. This was the heightened scrutiny argument: Because the state has a history of discriminating against gays for no good reason, any such discrimination has to pass a high hurdle before it will pass constitutional muster. 

New Mexico's decision in this regard is actually of some note. To reach intermediate or heightened scrutiny, a plaintiff has to show that he or she is a member of a discrete subgroup defined by a characteristic beyond its control and irrelevant to being a productive member of society, that the group has been the subject of discrimination, and is politically "powerless". Opponents of marriage equality like to focus on the red herring of gay political power: The President of the United States supports us, the Democratic Party platform favors marriage equality, Tammy Baldwin is a member of the Senate, we raise millions for advocacy every year, and so on. 

But the court saw this for the nonsense that it is. As we have discussed before, the "political powerlessness" prong is not a math equation about how many public offices we hold or have much power our money gives us. It is, instead, meant to reflect the burdens we face in the political process. We have constitutional amendments enshrining our inequality in a majority of the states, hate crimes against gays are up and they are up in reaction to political successes, and advocacy is essential because of the continued discrimination against us and because of our gross under-representation in positions of power. What's more, our political successes are fragile, at risk of being overturned and at the mercy of a heterosexual majority. Understanding the scrutiny test this way is notable because the New Mexico court responded well to the same types of arguments of gay political power offered by Justices Scalia and Alito and Chief Justice Roberts at the Windsor and prop 8 hearings.

Back to the case at hand: The only real argument for treating same-sex and opposite-sex couples differently when it came to marriage was that keeping marriage an exclusive right of heterosexuals advanced the state goal of encouraging "responsible procreation." That is, that because opposite-sex couples are the only ones that could accidentally have children, they need marriage to keep children inside the marital union.

That, of course, is preposterous on many levels. And the New Mexico Supreme Court agreed. Marriage, the justices said, had never been associated or dependent upon child rearing or procreation. And banning an entire group of marrying would, in any event, do nothing to encourage an entirely different group to marry.

In the end, then, denying same-sex couples marriage licenses violates equal protection and does not pass intermediate scrutiny in New Mexico. That argument mirrors the argument in Perry and will mirror the argument in every marriage case going forward. 

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

Topics: News More Posts About: Ari Ezra Waldman, Ari Ezra Waldman, gay marriage, Gay Marriage, Law - Gay, LGBT, Law - Gay, LGBT, New Mexico, New Mexico, News

Related Posts
  • Former Roommate Indicted For Murder Of Florida LGBTQ Activist Jorge Diaz-Johnston, One of the Public Faces In State Fight For Marriage Equality
  • Russia Blocks Facebook, Accusing it of Restricting Access to Russian Media;
  • Survivor Benefits Payments For Same-Sex Partners Are Being Paid Under Biden, But Many Don’t Even Know They Qualify
  • Actor Kevin Spacey facing sexual assault charges in UK

    Actor Kevin Spacey facing sexual assault charges in UK

    Published by AFP The two-time Oscar winner was artistic director of the Old Vic London (AFP) – Hollywood actor Kevin Spacey is facing sexual assault charges in the UK, police and prosecutors said on Thursday, after …Read More »
  • Depeche Mode’s Andy Fletcher has died aged 60

    Depeche Mode’s Andy Fletcher has died aged 60

    Published by BANG Showbiz English Depeche Mode’s Andy Fletcher has died aged 60. The keyboardist and founding member – who was born in Nottingham and moved to Basildon in the 70s – of the 80s band …Read More »
  • TV board dismisses Senator’s request to allow parents to shield kids from LGBTQ characters; Cites 95% Parent Satisfaction With Ratings

    TV board dismisses Senator’s request to allow parents to shield kids from LGBTQ characters; Cites 95% Parent Satisfaction With Ratings

      Published by The Kansas City Star   The TV Parental Guidelines Monitoring Board dismissed a request from Sen. Roger Marshall, a Republican from Kansas, asking them to update their ratings system so parents could shield …Read More »
  • Apple unveils new Pride Apple Watch bands and watch face

    Apple unveils new Pride Apple Watch bands and watch face

    Published by BANG Showbiz English Apple has unveiled new Pride bands and a watch face for the Apple Watch to mark Pride Month. The tech giant is releasing a Pride Edition Sport Loop and the Pride …Read More »
Previous Post: « Iowa Conservative Bob Vander Plaats Says Polygamy Ruling Will Lead To Child-Parent Marriages
Next Post: Santa’s Lap or Flu Shot? – VIDEO »

Primary Sidebar

News

  • Don McLean, Larry Gatlin Pull Out Of NRA Convention Concert In Texas

    Don McLean, Larry Gatlin Pull Out Of NRA Convention Concert In Texas

  • Trump must testify in New York probe, appeals court rules

    Trump must testify in New York probe, appeals court rules

  • Guns are now the leading cause of death for American children

    Guns are now the leading cause of death for American children

  • The staggering toll of gun violence in the United States

    The staggering toll of gun violence in the United States

Break

  • Justin Timberlake has sold his song catalogue in a deal reportedly worth 100 million dollars

    Justin Timberlake has sold his song catalogue in a deal reportedly worth 100 million dollars

  • Dyson set to preview new robots to help with tasks at home

    Dyson set to preview new robots to help with tasks at home

  • Elvis fever set to shake Cannes

    Elvis fever set to shake Cannes

  • Battle Of The Billionaires! Elon Musk SLAMS Bill Gates After Article Claims Microsoft Mogul Is Funding Musk’s Critics

    Battle Of The Billionaires! Elon Musk SLAMS Bill Gates After Article Claims Microsoft Mogul Is Funding Musk’s Critics

RSS Partner Links

  • OMG, his butt: Actor Devon Sawa in HACKS Season 2
  • OMG, LISTEN TO THIS: Dua Lipa and Young Thug team with Calvin Harris for ‘Potion’ video
  • Jacinda Ardern Delivers Harvard Commencement Speech: DEMOCRACY CAN BE FRAGILE
  • Morning Round-Up: James Scully; Jodie Foster; Jake Borelli; Andy Cohen; Ellen DeGeneres
  • eBay Is Homophobic (Literally) & Full Of Shit
  • Birthday Sluts
  • Caption Me
  • Song of the Day: 'Blasphemous Rumours' by Depeche Mode
  • Page 1 Roundup (05/27)

Most Recent

  • ‘The Reckoning Is Going To Happen’: Kevin Spacey’s Brother Slams Actor Hours After Sexual Assault Charges

    ‘The Reckoning Is Going To Happen’: Kevin Spacey’s Brother Slams Actor Hours After Sexual Assault Charges

  • Actor Kevin Spacey facing sexual assault charges in UK

    Actor Kevin Spacey facing sexual assault charges in UK

  • Depeche Mode’s Andy Fletcher has died aged 60

    Depeche Mode’s Andy Fletcher has died aged 60

  • TV board dismisses Senator’s request to allow parents to shield kids from LGBTQ characters; Cites 95% Parent Satisfaction With Ratings

    TV board dismisses Senator’s request to allow parents to shield kids from LGBTQ characters; Cites 95% Parent Satisfaction With Ratings

  • Apple unveils new Pride Apple Watch bands and watch face

    Apple unveils new Pride Apple Watch bands and watch face

  • Lithuanian parliament agrees to consider same-sex partnership bill

    Lithuanian parliament agrees to consider same-sex partnership bill

  • German minister warns against homophobia amid monkeypox outbreak

    German minister warns against homophobia amid monkeypox outbreak

Most Commented

Social

Twitter @tlrd | Facebook | Instagram @tlrd
  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Copyright © 2022 · Log in