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Friday, December 20, 2013

New Mexico Supreme Court Rules for Same-Sex Marriage

"Summary:  We conclude that although none of New Mexico’s marriage statutes specifically prohibit same-gender marriages, when read as a whole, the statutes have the effect of precluding same-gender couples from marrying and benefitting from the rights, protections, and responsibilities that flow from a civil marriage. Same-gender couples who wish to enter into a civil marriage with another person of their choice and to the exclusion of all others are similarly situated to opposite-gender couples who want to do the same, yet they are treated differently. 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.” Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 13, 138 N.M. 331, 120 P.3d 4.

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. NMSA 1978, § 32A-5-11 (1993) (recognizing parties who are eligible to adopt children); see also Chatterjee v. King, 2012-NMSC-019, ¶ 84, 280 P.3d 283 (Bosson, J., specially concurring) (recognizing the right of a former same-gender partner who supported both the child and her former partner to have standing to seek custody of the child). Finally, legislation must advance a state interest that is separate and apart from the classification itself. It is inappropriate to define the governmental interest as maintaining only opposite-gender marriages, just as it was inappropriate to define the governmental interest as maintaining same-race marriages in Loving. Therefore, the purported governmental interest of preventing the deinstitutionalization of marriage, which is nothing more than an argument to maintain only opposite-gender marriages, cannot be an important governmental interest under the Constitution.

We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children
if they choose to raise children together, and their property. Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified. Therefore, barring 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."...

"Remedy:  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. 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."

Edward L. Chávez, Justice, New Mexico Supreme Court, in unanimous decision, December 19, 2013; Griego v. Oliver, Docket No. 34306.

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