Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Thursday, December 19, 2013

Gay Marriage Now Legal in New Mexico

The New Mexico Supreme Court today struck down bans on same-sex marriage as unconstitutional in the case, Griego v. Oliver.  Seventeen states plus D.C. now recognize gay marriage as legal. 

The Griego Court first applied intermediate scrutiny to analyze the state marriage statutes. 

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.

It then rejected the purported government interests supporting discriminatory treatment of gay couples.    

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. . . . 

And then it rejected the common tautological argument that denial of marriage was to protect marriage itself.

Finally, legislation must advance a state interest that is separate and apart fromthe 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.

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