Case Information
*1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Opinion Number:_______________
Filing Date: December 19, 2013
Docket No. 34,306
ROSE GRIEGO and KIMBERLY KIEL,
MIRIAM RAND and ONA LARA PORTER,
A.D. JOPLIN and GREG GOMEZ,
THERESE COUNCILOR and TANYA STRUBLE,
MONICA LEAMING and CECELIA TAULBEE, and
JEN ROPER and ANGELIQUE NEUMAN,
Plaintiffs-Real Parties in Interest,
v.
MAGGIE TOULOUSE OLIVER,
in her official capacity as Clerk of Bernalillo County, and GERALDINE SALAZAR,
in her official capacity as Clerk of Santa Fe County,
Defendants-Real Parties in Interest,
and
STATE OF NEW MEXICO, ex rel.,
NEW MEXICO ASSOCIATION OF COUNTIES,
as the collective and organizational representative of
New Mexico’s thirty-three (33) Counties, and
M. KEITH RIDDLE,
in his official capacity as Clerk of Catron County,
DAVE KUNKO,
in his official capacity as Clerk of Chaves County,
ELISA BRO,
in her official capacity as Clerk of Cibola County,
FREDA L. BACA,
in her official capacity as Clerk of Colfax County,
ROSALIE L. RILEY,
in her official capacity as Clerk of Curry County,
ROSALIE A. GONZALES-JOINER,
in her official capacity as Clerk of De Baca County,
DARLENE ROSPRIM,
in her official capacity as Clerk of Eddy County,
ROBERT ZAMARRIPA,
in his official capacity as Clerk of Grant County,
PATRICK Z. MARTINEZ,
in his official capacity as Clerk of Guadalupe County,
BARBARA L. SHAW,
in her official capacity as Clerk of Harding County,
MELISSA K. DE LA GARZA,
in her official capacity as Clerk of Hidalgo County,
PAT SNIPES CHAPPELLE,
in her official capacity as Clerk of Lea County,
RHONDA B. BURROWS,
in her official capacity as Clerk of Lincoln County,
SHARON STOVER,
in her official capacity as Clerk of Los Alamos County,
ANDREA RODRIGUEZ,
in her official capacity as Clerk of Luna County,
HARRIETT K. BECENTI,
in her official capacity as Clerk of McKinley County,
JOANNE PADILLA,
in her official capacity as Clerk of Mora County,
DENISE Y. GUERRA,
in her official capacity as Clerk of Otero County,
VERONICA OLGUIN MAREZ,
in her official capacity as Clerk of Quay County,
MOISES A. MORALES, JR.,
in his official capacity as Clerk of Rio Arriba County,
DONNA J. CARPENTER,
in her official capacity as Clerk of Roosevelt County,
DEBBIE A. HOLMES,
in her official capacity as Clerk of San Juan County,
MELANIE Y. RIVERA,
in her official capacity as Clerk of San Miguel County,
EILEEN MORENO GARBAGNI,
in her official capacity as Clerk of Sandoval County,
CONNIE GREER,
in her official capacity as Clerk of Sierra County,
REBECCA VEGA,
in her official capacity as Clerk of Socorro County,
ANNA MARTINEZ,
in her official capacity as Clerk of Taos County,
LINDA JARAMILLO,
in her official capacity as Clerk of Torrance County,
MARY LOU HARKINS,
in her official capacity as Clerk of Union County, and
PEGGY CARABAJAL,
in her official capacity as Clerk of Valencia County,
Intervenors-Petitioners,
and
LYNN J. ELLINS,
in his official capacity as Clerk of Doña Ana County,
Real Party in Interest,
and
HON. ALAN M. MALOTT,
Respondent.
ORIGINAL PROCEEDING
Sutin, Thayer & Browne, P.C.
Peter S. Kierst
Lynn E. Mostoller
Albuquerque, NM
ACLU of New Mexico
Laura Louise Schauer Ives
Alexandra Freedman Smith
Albuquerque, NM
American Civil Liberties Union Foundation
Elizabeth O. Gill
James D. Esseks
San Francisco, CA
Law Office of Lynn Perls
N. Lynn Perls
Albuquerque, NM
Wray & Girard, P.C.
Jane Katherine Girard
Albuquerque, NM
National Center for Lesbian Rights
Shannon P. Minter
Christopher F. Stoll
San Francisco, CA
Sanders & Westbrook, P.C.
Maureen A. Sanders
Albuquerque, NM
for Plaintiffs
Office of the Bernalillo County Attorney
Randy M. Autio, County Attorney
Peter S. Auh, Deputy County Attorney
Albuquerque, NM
Office of the Santa Fe County Attorney
Stephen C. Ross, County Attorney
Willie R. Brown, Assistant County Attorney
Santa Fe, NM
for Defendants
New Mexico Association of Counties and
the Intervening County Clerks
Steven Kopelman
Grace Philips
Santa Fe, NM
The Ivey-Soto Law Firm
Daniel A. Ivey-Soto
Albuquerque, NM
for Intervenors
Gary K. King, Attorney General
Scott Fuqua, Assistant Attorney General
Sean M. Cunniff, Assistant Attorney General
Santa Fe, NM
for Respondent
The Carrillo Law Firm, P.C.
Raul A. Carrillo, Jr.
Karen Elaine Wootton
Las Cruces, NM
for Amicus Curiae
Doña Ana County Clerk
Alliance Defending Freedom
James A. Campbell
Joseph E. La Rue
Scottsdale, AZ
Evie M. Jilek
Albuquerque, NM
for Amicus Curiae
New Mexico Legislators
Jenner & Block LLP
Paul M. Smith
Washington, DC
Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Beinvenu, LLP Sarah Eileen Bennett
Santa Fe, NM
Caren Ilene Friedman
Santa Fe, NM
for Amici Curiae
American Psychological Association, New Mexico Psychological Association, National Association of Social Workers, National Association of Social Workers New Mexico, and New Mexico Pediatric Society
Office of the Santa Fe City Attorney
Eugene I. Zamora, City Attorney
Zachary A. Shandler, Assistant City Attorney
Santa Fe, NM
for Amicus Curiae
City of Santa Fe
University of New Mexico School of Law
Max Justin Minzner
George L. Bach, Jr.
Albuquerque, NM
for Amicus Curiae
Professors at University of New Mexico School of Law
Gay & Lesbian Advocates & Defenders
Mary Bonauto
Boston, MA
Daniel Yohalem
Santa Fe, NM
for Amici Curiae
Equality New Mexico, National Organization for Women Foundation, New Mexico National Organization for Women, PFLAG New Mexico, Southwest Women’s Law Center, Freedom to Marry, Prosperity Works, American Veterans for Equal Rights- Bataan Chapter, Transgender Resource Center of New Mexico, Human Rights Alliance, Organizers in the Land of Enchantment, Media Literacy Project, New Mexico Lesbian and Gay Lawyers Association, Anti-Defamation League, Pacific Association of Reform Rabbis, Temple Beth Shalom of Santa Fe, The Unitarian Universalist Congregation of Santa Fe, Rev. Talitha Arnold, Rev. Kathryn A. Schlechter, Rising Sun Ministries, Metropolitan Community Church of Albuquerque
OPINION
CHÁVEZ, Justice.
{1} “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. The United States Supreme Court explained the courts’ responsibility as follows:
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 *7 not be submitted to vote; they depend on the outcome of no elections.
W. Virginia State Bd. of Educ. v. Barnette
,
{2} 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) (“[R]estricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”). The same-gender couples in this case, all of whom are in long- term, committed relationships, some of whom have raised foster and adoptive children together, allege that they have a constitutional right under the Due Process and Equal Protection provisions of New Mexico’s Bill of Rights to enter into civil marriages and to enjoy the concomitant legal rights, protections, and responsibilities of marriage. 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. 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.
[1]
See
N.M. Const. art. II, § 11;
Larson v. Valente
,
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.
,
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.
Procedural history
{7}
A marriage license is “required under New Mexico law as evidence that a marriage
fully complies with all requirements of the law.”
Rivera v. Rivera
,
{8} Plaintiffs filed their complaint in Griego , seeking a declaration “that it is unlawful to deny same-sex couples the freedom to marry on the basis of sex or sexual orientation because such denial deprives them of fundamental rights and liberties.” They also sought a permanent injunction requiring, in part, that “Defendants implement and enforce all aspects of the state’s marriage law . . . without discriminating on the basis of sex or sexual orientation” and that Defendants treat Plaintiffs “once married . . . [,] equally with all other married couples under the Constitution and laws of New Mexico.” On August 29, 2013, following an initial declaratory judgment in Griego , the New Mexico Association of Counties, as the organizational representative for the State’s thirty- three Clerks, filed an unopposed motion to intervene based on a common question of law under Rule 1-024(B)(2) NMRA, stating their future intentions to “seek immediate review from the state Supreme Court.” The Clerks asserted that they have a “need for an immediate ruling that is applicable statewide and that resolves the constitutional questions at the highest level of appellate review.” On September 3, 2013, the district court issued its final declaratory judgment stating
that the refusal to issue marriage licenses to otherwise qualified same-gender couples
*10
violated Article II, Section 18 of the New Mexico Constitution. On September 5, 2013, the
Clerks filed, and we accepted, a verified petition for writ of superintending control. Prior
to accepting the writ in this case, this Court had denied two separate verified petitions for
writs of mandamus “without prejudice to the parties to pursue litigation of issues in the lower
court with a right to request expedited review.”
See Hanna v. Salazar
, No. 34,216 (non-
precedential order, N.M. Sup. Ct. Aug 15, 2013);
Griego v. Oliver
, No. 34,227 (non-
precedential order, N.M. Sup. Ct. Aug. 15, 2013). Both cases were subsequently decided
in the district courts.
See State ex rel. Hanna v. Salazar
, No. D-0101-CV-2013-02182, Aug.
22, 2013;
Griego v. Oliver
, D-202-CV-2013-02757, Sept. 3, 2013. In addition, a number of
other district courts have issued writs or orders requiring Clerks to issue marriage licenses
to same-gender couples in New Mexico.
See State ex rel. Stark v. Martinez
, No. D-820-CV-
2013-295, alternative writ of mandamus issued in the Eighth Judicial District Court on
August 27, 2013 affecting Taos County;
State ex rel. Newton v. Stover
, No. D-132-CV-2013-
00094, alternative writ of mandamus issued in the First Judicial District Court on August 29,
2013 affecting Los Alamos County;
Katz v. Zamarripa
, No. D-608-CV-2013-00235, final
order and permanent injunction issued in the Sixth Judicial District Court on September 5,
2013 affecting Grant County. Other cases are awaiting the outcome of the petition for writ
of superintending control that is presently before this Court.
[2]
Our exercise of superintending control is appropriate in this case
Article VI, Section 3 of the New Mexico Constitution provides that “[t]he supreme
court shall have . . . superintending control over all inferior courts; it shall also have power
to issue . . . writs necessary or proper for the complete exercise of its jurisdiction and to hear
and determine the same.” When we deem it appropriate, we exercise our power of
superintending control “to control the course of ordinary litigation in inferior courts . . . even
when there is a remedy by appeal, where it is deemed to be in the public interest to settle the
question involved at the earliest moment.”
State ex rel. Schwartz v. Kennedy
, 1995-NMSC-
069, ¶¶ 7-8,
*11 {13} The record before us reflects the uncertainty described by the Clerks. At the time this petition was filed, eight New Mexico counties were issuing marriage licenses to same-gender couples, while twenty-four were not. By October 23, 2013, the date of oral argument before this Court, over 1,466 marriage licenses had been issued.
{14} We requested briefing to consider the merits of this case because (1) the parties complied with this Court’s order to pursue litigation in the lower courts and thereafter requested expedited review; (2) the varying positions of the courts and the Clerks regarding the issuance of licenses to same-gender couples created chaos statewide; (3) the Clerks are performing a duty under state law and they express uncertainty and disagreement about how to proceed; (4) there are currently more than 1,400 same-gender couples whose New Mexico marriages may not be recognized for the purpose of receiving federal benefits due to the lingering uncertainty about the law in New Mexico; and (5) there is a high volume of cases ruled upon by district courts and pending throughout New Mexico regarding the common question of law regarding whether same-gender marriage is lawful in New Mexico. Once we agreed to hear this case we invited and accepted amicus curiae briefs to ensure that the important issues before us were adequately briefed and argued to this Court. We affirm the district courts and grant the writ of superintending control.
The real parties in interest who seek to marry
{15} The real parties in interest in this case (Plaintiffs) are six same-gender couples from four New Mexico counties who wish to marry and who were the plaintiffs in the Second Judicial District Court case of Griego v. Oliver , No. D-202-CV-2013-02757. Plaintiffs include accountants, interior designers, real estate brokers, teachers, small business owners, and engineers at our national laboratories. Many are active in community service; they volunteer and work for non-profit organizations, and serve on municipal boards and city councils. They have formed stable family units involving mutual protection and support, and together they have raised children, cared for aging parents, and tried to have those family units formally recognized through both legal and ceremonial means. As of August 16, 2013, the date they filed their second amended complaint, Plaintiffs
Rose Griego (Rose) and Kimberly Kiel (Kim) had been in a committed relationship for eight years; Plaintiffs Miriam Rand (Miriam) and Ona Lara Porter (Ona) had been in a committed relationship for twenty-five years; Plaintiffs Aaron Joplin (A.D.) and Greg Gomez (Greg) had been in a committed relationship for seven years; Plaintiffs Therese Councilor (Therese) and Tanya Struble (Tanya) had been in a committed relationship for twenty-three years and own a business together; Plaintiffs Monica Leaming (Monica) and Cecilia Taulbee (Cecilia) had been in a committed relationship for fifteen years; and Plaintiffs Jen Roper (Jen) and Angelique Neuman (Angelique) had been in a committed relationship for the past twenty- one years. Several of the Plaintiff couples raise or have raised children and grandchildren
together. Miriam and Ona raised three children together during the course of their twenty- *12 five year relationship. Their youngest daughter, who was only three when Miriam and Ona combined households, legally changed her surname to Porter-Rand to reflect the importance of both of the mothers in her life. Their middle daughter, Cherif, is physically disabled and can no longer care for her fourteen-year-old daughter, who has cerebral palsy. Ona has adopted Cherif’s daughter and Miriam plans to initiate a second-parent adoption. Until the adoption is finalized, Miriam does not have automatic legal authority to make important decisions for her granddaughter, whom she is helping to raise. Monica and Cecilia raised Cecilia’s three children to adulthood during their fifteen-year relationship; all three children consider Monica as another parent, and she considers them to be her children. Similarly, Kim’s college-aged children refer to Rose as their step-mother. A.D. and Greg have no biological children, but they maintain a relationship with their former long-term foster child they raised who is now an adult, who calls them both Dad. Jen and Angelique adopted three preschool-age brothers from the custody of the Children, Youth & Families Department and have raised them together. The two youngest boys live with their mothers, while the eldest left home after enlisting in the United States Army following his graduation from high school. All three brothers support their mothers’ efforts to legally marry.
{18}
The inability to legally marry has adversely impacted several of the Plaintiff couples
who have endured significant familial and medical hardships together. On one occasion,
when Rose was hospitalized, the hospital refused to provide Kim with any information about
Rose’s condition or treatment until Rose’s other family members arrived, despite the fact
that it was Kim who took Rose to the hospital. Miriam and Ona cared for each other’s aging
parents, and both women’s mothers passed away within one year of each other. However,
Miriam was not eligible for bereavement leave when Ona’s mother died, and Ona was not
eligible for bereavement leave when Miriam’s mother died. Also, due to restrictive next-of-
kin and family-only limitations on visitation and medical decision-making, Miriam and Ona
were forced to pretend to be sisters. Jen was diagnosed with an aggressive form of brain
cancer in late 2012, and doctors told her she had eighteen months to live. After surgery to
partially remove the tumor, Jen suffered a stroke, which impaired some of her physical and
cognitive functions. At the time Plaintiffs filed their complaint, Jen had been placed in an
assisted living facility, and Angelique was spending several hours each day with her.
Because Jen and Angelique could not legally marry, Angelique could not collect spousal
benefits as a result of Jen’s disability, despite their twenty-one year relationship.
When read as a whole, New Mexico marriage statutes prohibit same-gender marriages
We begin our legal discussion with an analysis of New Mexico marriage statutes to
determine whether the statutes authorize or prohibit same-gender marriages. If the statutes
can be interpreted to authorize same-gender marriages, including all of the rights,
protections, and responsibilities that come with being married, the constitutional questions
raised by Plaintiffs are irrelevant.
See Chatterjee
,
of records of all marriages hereafter contracted, and the better preservation of said record for
future reference. . . .” 1905 N.M. Laws, ch. 65, § 7. The forms included an application for
marriage license, a marriage license, and a marriage certificate.
Id
. § 8. The application and
marriage license did not contain any gender- specific designations. However, the marriage
certificate required signatures from both the “groom” and the “bride.”
Id
. “Under the rules
of statutory construction, we first turn to the plain meaning of the words at issue, often using
the dictionary for guidance.”
New Mexico Attorney Gen. v. New Mexico Pub. Regulation
Comm’n
,
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.
See
United States v. Windsor
, ___ U.S. ___, ___, ___,
{25} Plaintiffs contend that New Mexico’s laws denying same-gender couples the same right to a civil marriage as that enjoyed by opposite-gender couples violates the Equal Protection Clause of Article II, Section 18 of the New Mexico Constitution because it discriminates against them on the basis of either their sex or their sexual orientation. See id. (“No person shall be . . . denied equal protection of the laws.”). Plaintiffs also contend that the right to marry is a fundamental right and the State’s interference with the exercise of this right also violates the New Mexico Constitution. Plaintiffs do not claim that New Mexico’s marriage laws violate the United States Constitution. We will address the equal protection challenge before discussing the fundamental
rights issue. We interpret the equal protection challenge to raise two questions: (1) do committed same-gender couples have a constitutional right to be married, and (2) do they have a constitutional right to the rights, protections, and responsibilities afforded to married opposite-gender couples? We apply the equal protection approach announced in Breen to answer these two
constitutional questions. This approach generally requires us to first determine whether the
legislation creates a class of similarly-situated individuals and treats them differently.
Same-gender couples who seek to marry are situated similarly to opposite-gender
affirmed by Garden State Equal. v. Dow
, ___ A.3d ___, ___,
couples who seek to marry
{28} Plaintiffs contend that they are similarly situated to opposite-gender couples who seek to be married because they also are in committed and loving relationships. Some of these Plaintiffs are raising families, similar to many opposite-gender couples who also seek to be married. They assert that recognition of their status as married couples will provide them with a stable framework within which to care for each other and raise families, similar to opposite-gender couples who want to marry and raise their families.
{29}
The opponents of same-gender marriage concede that same-gender couples may be
similarly situated to opposite-gender couples with respect to their love and commitment to
one another, but they contend that these similarities are beside the point. The opponents
contend that the government’s overriding purpose for recognizing and regulating marriage
is “responsible procreation and child-rearing,” which they describe as the ability of a married
couple to naturally produce children. In addition, because same-gender couples do not have
the natural capacity to create children through their sexual relationships, the opponents
contend that same-gender couples cannot be similarly situated to opposite-gender couples.
{30}
To determine whether same-gender and opposite-gender couples who seek to marry
are similarly situated with respect to NMSA 1978, Chapter 40, “we must look beyond the
classification to the purpose of the law.”
New Mexico Right to Choose/NARAL v. Johnson
,
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. In addition, just as opposite-gender couples may adopt or have children *17 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. {33} 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. This purpose is self-evident from the structure of our laws. NMSA 1978, Chapter 40, Article 1 (1859, as amended through 2013) generally describes our marriage laws. Civil marriage is purely secular; it is a civil contract. Section 40-1-1. The civil contract must be solemnized during a ceremony by ordained clergy or certain other designated officials who are not ordained clergy. Section 40-1-2. With respect to children, the general marriage laws provide that “[a] child born to parents who are not married to each other has the same rights pursuant to the law as a child born to parents who are married to each other.” Section 40-1-16(A). {34} NMSA 1978, Chapter 40, Article 2 generally describes the rights of married persons. It begins by specifying that the “[h]usband and wife contract toward each other obligations of mutual respect, fidelity and support.” Section 40-2-1. Other provisions in Article 2 describe in general terms marriage settlements or separation contracts, requiring that any such agreements be in writing. Section 40-2-4. NMSA 1978, Chapter 40, Article 3 defines the property rights of a married couple
and establishes equality in property ownership by enacting the Community Property Act, NMSA 1978, §§ 40-3-6 to -17 (1973, as amended through 1997). Section 40-3-7. Gender- neutral language is used throughout the Community Property Act. See §§ 40-3-6 to -17. NMSA 1978, Chapter 40, Article 4 provides for the orderly dissolution of a marriage. See §§ 40-4-1 to -20. Finally, the Family Preservation Act, NMSA 1978, §§ 40-15-1 to -4 (2005), also supports our conclusion that the overriding purpose of our marriage laws is the stability of marriage for the benefit of married couples and their families. “The purpose of the Family Preservation Act is to confirm the state’s policy of support for the family and to emphasize the responsibilities of parents and the state in the healthy development of children and the family as an institution.” Section 40-15-2. These statutes do not indicate a legislative concern with whether a couple procreates. Instead, these statutes, when considered as a whole, evince an overriding concern with protecting the stability of family units, whether they are procreative or not. We conclude that same-gender couples who are in loving and committed
relationships and want to be married under the laws of New Mexico are similarly situated
to opposite-gender couples who likewise are in loving and committed relationships and want
to be married. Other courts that have considered this issue have also found that same-gender
*18
and opposite-gender couples who want to marry are similarly situated. In
In re Marriage
Cases
,
Both groups at issue consist of pairs of individuals who wish to enter into a formal, legally binding and officially recognized, long-term family relationship that affords the same rights and privileges and imposes the same obligations and responsibilities. Under these circumstances, there is no question but that these two categories of individuals are sufficiently similar to bring into play equal protection principles that require a court to determine “‘whether distinctions between the two groups justify the unequal treatment.’”
Id
. at 435 n.54 (quoting
People v. Hofsheier
,
{37}
In
Kerrigan v. Commissioner of Public Health
,
gender couples are similarly situated to opposite-gender couples.
Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.
Varnum v. Brien , 763 N.W.2d 862, 883 (Iowa 2009). We are persuaded that the same analysis applies to same-gender couples in New Mexico who want to get married. Having *19 concluded that same-gender and opposite-gender couples who want to marry are similarly situated, we next consider the level of scrutiny to apply.
Intermediate scrutiny applies because the legislation at issue affects a sensitive class
{39}
Three potential levels of scrutiny are available under an equal protection challenge.
First, if the statutes treat a suspect class differently, the least deferential standard of review,
strict scrutiny, applies, and the burden is on the party supporting the statutes to prove that
the legislation furthers a compelling state interest.
Breen
,
{40}
Plaintiffs contend that strict scrutiny should be applied to their equal protection
challenge because prohibiting their marriages denies same-gender couples rights based on
their sex. They cite
NARAL
,
sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation. The New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -15
(1953, as amended through 2007), was amended in 2003 to add “sexual orientation” as a
class of persons protected from discriminatory treatment. 2003 N.M. Laws, ch. 383, § 2.
“Sex” had already been a protected class. 2001 N.M. Laws, ch. 347, § 1. “Sexual
orientation” is defined in the NMHRA as “heterosexuality, homosexuality or bisexuality,
whether actual or perceived.” Section 28-1-2(P). In this case, we are concerned with those
individuals who want to marry someone of the same gender, whether they are homosexual,
bisexual, or transgender. Other New Mexico legislation offers protection based on sexual
orientation as well as gender.
See
NMSA 1978, § 29-21-2 (2009) (prohibiting profiling by
law enforcement officers on the basis of sexual orientation as well as other characteristics);
NMSA 1978, § 31-18B-2(D) (2007) (including sexual orientation as a protected status under
the Hate Crimes Act, NMSA 1978, §§ 31-18B-1 to -5 (2003, as amended 2007)). The need
*20
to add “sexual orientation” to these statutes would have been unnecessary if “sex” as a
protected class encompassed an individual’s sexual orientation.
See Simonton v. Runyon
,
in same-gender marriage cases based upon sexual orientation, not gender.
See In re
Marriage Cases
,
Classification on the basis of sexual orientation requires intermediate scrutiny
Plaintiffs contend that even if the classification at issue is based on an individual’s
sexual orientation, such a classification should be treated as a suspect classification requiring
strict scrutiny. A suspect class is “a discrete group ‘saddled with such disabilities, or
subjected to such a history of purposeful unequal treatment, or relegated to such a position
of political powerlessness as to command extraordinary protection from the majoritarian
political process.’”
Richardson v. Carnegie Library Rest., Inc.
,
the history of invidious discrimination against women, including restrictions on their rights
to vote, hold public office,
NARAL
,
The Democratic Party has included redefining marriage in its official party platform. See Platform Standing Comm., 2012 Democratic Nat’l Convention Comm., Moving America Forward . . . 18 (2012), available at *22 http://www.democrats.org/democratic-national-platform.
The President and his administration support same-sex marriage. See Josh Earnest, President Obama Supports Same-Sex Marriage , The White House B l o g ( M a y 1 0 , 2 0 1 2 , 7 : 3 1 P M ) , http://www.whitehouse.gov/blog/2012/05/10/obama-supports-same-sex- marriage. [http://assets.dstatic.org/dnc-platform/2012-National- Platform.pdf.]
During the last five years, legislatures in seven United States jurisdictions—New Hampshire, Vermont, New York, the District of Columbia, Minnesota, Delaware, and Rhode Island—have voted to redefine marriage. See Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws, National Conference of State Legislatures ([current on] July 26, 2013), http://www.ncsl.org/issues-research/human-services/same-sex- marriage-overview.aspx.
Last year, the citizens of three States—Maine, Maryland, and Washington—decided to redefine marriage through a direct vote of the people. See Richard Socarides, Obama and Gay Marriage: One Year Later , T h e N e w Y o r k e r ( M a y 6 , 2 0 1 3 ) , http://newyorker.com/online/blogs/newsdesk/2013/05/obama-and-gay- marriage-one-year-later.html. 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. Until 1975, consensual sexual intimacy between persons
of the same gender was prohibited and actively prosecuted in New Mexico courts under anti-
sodomy laws.
See
NMSA 1953, § 40A-9-61 (1963) ((Vol. 6, 2d Repl. Pamp.), repealed,
Laws 1975, ch. 109, § 8). Convictions for sodomy in New Mexico were upheld despite
constitutional challenges to these laws.
See State v. Elliott
,
we recognize that they have had some recent political success regarding legislation
*23
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.
See Breen
,
gains repealed by popular referendums.
Romer v. Evans
,
No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.
Id . (internal quotation marks omitted). In Romer , the United States Supreme Court *24 invalidated the Colorado constitutional amendment because it violated the Equal Protection Clause of the United States Constitution. Id . at 632-33. California provides another example. After the California Supreme Court filed its opinion in In re Marriage Cases , California voters passed Proposition 8, which amended the California Constitution to provide that “‘[o]nly marriage between a man and a woman is valid or recognized in California.’” Cal. Const., Art. I, § 7.5; Hollingsworth v. Perry , ___ U.S. ___, ___, 133 S. Ct. 2652, 2659 (2013). At the time this case was argued in October, 2013, only a minority of states had
enacted laws identifying “sexual orientation” as a protected class for purposes of anti-
discrimination laws.
[8]
Only six states had recognized the validity of and enacted legislation
permitting same-gender marriages, or civil unions, at the time this opinion was filed:
Delaware, 79 Del. Laws ch. 19 (2013); Minnesota, 2013 Minn. Sess. Law Serv. 74 (West);
New Hampshire, 2009 N.H. Laws 60-66; New York, N.Y. Dom. Rel. Law § 10-a (Consol.
2011); Rhode Island, R.I. Gen. Laws § 15-1-1 (2013); and Vermont, 2009 Vt. Acts &
Resolves 3. Four states, Massachusetts, California, Iowa, and Connecticut, interpreted their
respective constitutions to require same-gender marriages.
See In re Marriage Cases
, 183
P.3d at 452;
Kerrigan,
957 A.2d at 482;
Varnum
, 763 N.W.2d at 904;
Goodridge
, 798
N.E.2d at 968. In three states, Maine, Maryland, and Washington, the electorate voted in
favor of same-gender marriages. Ashley Fetters, Same-Sex Marriage Wins on the Ballot for
the First Time
in American History,
theatlantic.com (Nov. 7, 2012),
http://www.theatlantic.com/ sexes/archive/2012/11/same-sex-marriage-wins-on-the-ballot-
for-the-first-time-in-american-history/264704/ (listing the wording of each ballot proposal).
Finally, three states, New Jersey, Illinois, and Colorado, have legislation that grants same-
gender couples an alternative to civil marriage and makes available to them many of the
benefits granted to married couples.
See
Colo. Rev. Stat. §§ 14-15-102 to -119 (2013); 750
Ill. Comp. Stat. 75/1 to 75/90 (2011); N.J. Stat. Ann. 37:1-28 to -36 (2006).
[9]
The history we
have just recounted demonstrates that the members of the LGBT community do not have
sufficient political strength to protect themselves from purposeful discrimination.
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.
Breen
,
because the LGBT community is a discrete group that has been subjected to a history of
purposeful discrimination, and it has not had sufficient political strength to protect itself
from such discrimination. As we noted in
Breen
, to apply intermediate scrutiny, the class
adversely affected by the legislation does not need to be “completely politically powerless,
but must be limited in its political power or ability to advocate within the political system.”
It is unclear whether the right to marry is a fundamental right requiring strict scrutiny Before we proceed to analyze the legislation under intermediate scrutiny, we must address Plaintiffs’ argument that a strict scrutiny level of review is required because an individual’s right to marry the person of his or her choice is a fundamental right. The opponents of same-gender marriage respond to Plaintiffs’ argument by redefining the right pursued by Plaintiffs as being the right to marry a person of the same gender. They contend that the right to marry someone of the same gender is not a fundamental right because it is not deeply rooted in New Mexico history and tradition, nor is it an important constitutional right because no state constitutional provision guarantees such a right. We conclude that the correct question is whether the right to marry is a fundamental right requiring strict scrutiny, which is a question that has not been answered by the United States Supreme Court. For the following reasons, we determine that we do not need to definitively answer this difficult *26 question.
{55}
Civil marriage is considered to be a civil right.
See, e.g.
,
Loving
,
Denying same-gender couples the right to marry and all of the rights, protections, and responsibilities available under state and federal law does not survive intermediate scrutiny We will uphold the statutes at issue in this case if the opponents of same-gender
marriage can prove that denying same-gender couples the right to marry—with all of its
attendant statutory rights, protections and responsibilities—is substantially related to an
important governmental interest.
See Breen
,
suggesting that there are three governmental interests for prohibiting same-gender couples
*27
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. 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.
See Wagner v.
AGW Consultants
,
{58}
In
Lawrence v. Texas
,
attendant rights, protections, and responsibilities is substantially related to the purported important governmental interests in “responsible procreation and child-rearing,” which we have already indicated are not supported in the history of New Mexico’s marriage legislation. It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage. We separately consider the purported governmental interests in responsible
procreation and responsible child rearing. 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. The
discriminatory classification is also glaringly under-inclusive. Discriminatory legislation
*28
is under-inclusive if the classification does not include all of those who are similarly situated
with respect to the purpose of the law.
Dandridge v. Williams
,
gender couples. We conclude that there is not a substantial relationship between New
Mexico marriage laws and the purported governmental interest in responsible procreation.
The final issue is whether denying the rights and protections of federal and state laws
to same-gender couples who want to marry and have families by adoption or assisted
reproduction furthers the State’s purported interest in promoting responsible child-rearing.
In this case, no one denies that LGBT individuals are fully capable of entering into the kind
of loving and committed relationships that serve as the foundation for families, or that they
are capable of responsibly caring for and raising children. The 2010 United States Census
reported that at that time, there were 111,033 households headed by same-gender couples
with their own children residing in their households, and that of those households, 1,038
were in New Mexico.
United States Census 2010
and
2010 American Community Survey,
Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of
Own Children
, available at http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls.
The New Mexico Court of Appeals has held that “a person’s sexual orientation does not
automatically render the person unfit to have custody of children.”
A.C. v. C.B.
,
gender parents are responsible parents. As we have previously discussed, many of the Plaintiffs in this case have been in long-term, committed relationships, and many of them are raising or have raised children and grandchildren. Plaintiffs Miriam and Ona have been in a committed relationship for twenty-five years and have raised three children and one grandchild. Plaintiffs A.D. and Greg have been in a committed relationship for seven years and have raised a foster child together. Plaintiffs Monica and Cecilia have been in a committed relationship for fifteen years and have raised three daughters together. Plaintiffs Jen and Angelique have been in a committed relationship for twenty-one years and have raised three adopted sons together, one of whom is serving our country as an enlisted soldier in the United States Army. 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, 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. Innumerable statutory benefits and protections inure to the benefit of a married couple. We have identified several relating to community property rights in this opinion. See §§ 40-3-7 to -17 (1975) (addressing the property rights of “husband and wife”). The New Mexico Probate Code contains other benefits and protections. See NMSA 1978, § 45-2-807(a) (1975, as amended through 1993) (one-half of the community property goes to the surviving spouse); NMSA 1978, § 45-3-203(A)(2) (1975, as amended through 2011) (granting priority of the appointment as personal representative to the surviving spouse if the decedent did not nominate a personal representative or exclude the surviving spouse as a devisee). Married persons are granted property exemptions from creditors, receivers, or trustees to preserve essential resources and a home for the family. See NMSA 1978, §§ 42- 10-1 to -13 (1887, as amended through 2007) (listing types of exemptions). Wrongful death damages are allocated to a surviving spouse when a tortfeasor causes the death of a spouse. See NMSA 1978, § 41-2-3(A) (1882, as amended through 2001) (allocating wrongful death damages to the surviving spouse). A spouse has priority to make health-care and end-of-life decisions for an incapacitated spouse, NMSA 1978, § 24-7A-1(G) (1995, as amended through 2009), by virtue of being a spouse, NMSA 1978, § 24-7A-5(B)(1) (1995, amended 1997). Conversely, a member of an unmarried couple must establish the quality and quantity of the relationship with his or her incapacitated partner—issues that frequently become contentious—before he or she can make health-care and end-of-life decisions on behalf of the incapacitated partner. See § 24-7A-5(B)(2) (“[A]n individual in a long-term relationship of indefinite duration with the patient” may act as a surrogate to make health-care decisions *30 for the patient.).
{65}
Children are also both directly and indirectly the beneficiaries of the statutory
benefits and protections available to a married couple. Children benefit from the
presumption of legitimacy when they are born to a married couple. Section 40-11A-204(A).
In the event of separation or divorce, children benefit from orderly child custody
proceedings, § 40-4-9; child support, § 40-4-11; joint custody, § 40-4-9.1(B); and the
important doctrine which requires courts to consider the best interests of the child. In
addition, as we noted in
Chatterjee
, the best interests of a child do not depend on a parent’s
sexual orientation or marital status.
{66} We have not attempted to provide an exhaustive list of the statutory rights and protections available to a married couple, but the essence of many of the statutes that we have identified is to assist with the stability of the relationship and the safeguarding of important collective resources. The burdens on same-gender couples who want to marry and who are deprived of federal and state benefits and protections, compared to opposite-gender couples who want to marry and are therefore eligible for federal and state benefits and protections, is readily apparent and, if same-gender marriages are not legally permitted, inequitable. The enhanced income and the laws that create financial security for married couples are important sources of stability for a family bonded by marriage. This is evident not only during end-of-life circumstances, but also in the event of a separation or divorce. By denying same-gender couples the right to marry, the Legislature also deprives them of the protections of New Mexico divorce laws. Instead, same-gender couples and their children are forced into courts of equity without the benefit of property division laws, child support, child custody, and visitation laws that minimize uncertainty for the family unit. Excluding same-gender couples from civil marriage prevents children of same- gender couples from enjoying the security that flows from the rights, protections, and responsibilities that accompany civil marriage. There is no substantial relationship between New Mexico’s marriage laws and the purported governmental interest of responsible child- rearing. 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. We invited the active participation in this case of amici curiae to ensure that the
important issues before us were properly and thoroughly briefed and argued to this Court. The parties and amici have had ample opportunity to articulate a constitutionally-adequate justification for limiting marriage to opposite-gender couples. The supposed justifications for the discriminatory legal classification 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. *31 Remedy
{69} 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. With respect to the forms required by Section 40-1-18, gender-neutral language shall
be utilized by the Clerks. Section 40-1-17 states that “the form of application, license and certificate shall be substantially as provided in Section 40-1-18.” Therefore, to comply with the New Mexico Constitution, gender-neutral language shall be utilized in identifying the applicants and spouses. We grant a writ of superintending control and order the courts to mandate compliance
with the holdings and rationale of this opinion.
{72} IT IS SO ORDERED.
____________________________________ EDWARD L. CHÁVEZ, Justice WE CONCUR:
____________________________________
PETRA JIMENEZ MAES, Chief Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
CHARLES W. DANIELS, Justice
____________________________________
BARBARA J. VIGIL, Justice
Notes
[1] Every man [or woman] shall be free to worship God according to the dictates of his [or her] own conscience, and no person shall ever be molested or denied any civil or political right or privilege on account of his [or her] religious opinion or mode of religious worship. No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship. N.M. Const. art. II, § 11.
[2] These cases include Gering v. Garbagni , No. D-1329-CV-2013-01715 (Sandoval County) and three cases brought by state legislators to challenge the validity of licenses already issued, in some cases where individual Clerks have issued marriage licenses to same- gender couples, even without a court order directing them to do so. Sharer v. Ellins , No. CV-2013-2061 (Doña Ana County); Sharer v. Rivera , No. D-412-CV-2013-00367 (San Miguel County); Sharer v Carabajal , No. D-1314-CV-2013-01058 (Valencia County).
[3] See, e.g. , §§ 40-2-1, -8.
[4] See, e.g. , §§ 40-3-1, -12.
[5] See, e.g. , § 40-4-3.
[6] Since the filing of
United States v. Windsor
, ___ U.S. ___,
[7] “[T]his Court—or any court, trial or appellate—may take judicial notice of
legislative facts by resorting to whatever materials it may have at its disposal establishing
or tending to establish those facts.”
Quynh Truong v. Allstate Ins. Co.
,
[8] Twenty state civil or human rights acts prohibit discrimination against consumers based on their sexual orientation. See Justin Muehlmeyer, Toward a New Age of Consumer Access Rights: Creating Space in the Public Accommodation for the LGBT Community , 19 Cardozo J.L. & Gender 781, 782 n.11 (Spring 2013).
[9] Held unconstitutional by Garden State Equal. v. Dow , ___ A.3d at ___, 2013 WL 5687193, at *2. See n.6, supra .
[10] It is doubtful that the government could preclude any couple from marrying because
they are unwilling or unable to procreate.
See Eisenstadt v. Baird
,