October 24, 2013
Half of the argument focused on the unique statutory issues in New Mexico marriage law, and the second half focused on constitutional issues. In New Mexico, as has been noted here before, there is no law explicitly addressing the question of whether same-sex couples may get married. Most state statutes are gender-neutral. The court first addressed this issue, pressing the attorneys to explain what rights are allowed by state statute. The Justices referenced the “plain meaning” of the statute at the time it was enacting, suggesting that it could only have been considered opposite-sex only, and that the state supreme court had certainly assumed that was true in other cases.
Most of the Justices, though, seemed skeptical of arguments that the statutes referred only to opposite-sex couples and banned same-sex couples from marrying. One Justice – who inquired how it can be argued that marriage statutes are clear when the legislature has tried to pass statutes stating that marriage is opposite-sex only – suggested that it “sounds like the definition of ambiguity” that attempts by the legislature have been made to pass marriage laws that either limit the institution to opposite-sex couples or extend it to same-sex couples with neither side finding the votes to pass the law.
Skepticism from the Justices continued when the lawyer arguing for Republican legislators that the statutes don’t permit same-sex marriage mentioned the familiar “responsible procreation” argument as a rational basis to allow only opposite-sex marriage. Justices asked if he could point to any statute where fertility was relevant to marriage or to handing out marital benefits in the state, and his attempts to discuss nationwide statutes brought a sharp response that “we’re talking about New Mexico statutes here.” The lawyer eventually conceded that, despite references to the procreative purpose of marriage in New Mexico, there’s nothing in state statutes regarding that rationale.
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Justices pointed to joint tax returns, inheritance rights, ownership of homes, and other things as rights guaranteed to married couples without regard to responsible procreation, at which point, the lawyer argued all of those benefits further procreation by incentivizing opposite-sex couples to marry.
Then, the questioning turned to the question of how allowing same-sex couples to marry would discourage opposite-sex couples from marrying, prompting repeated attempts by the Justices to get the lawyer to articulate his reasoning. To the question “how does allowing same-sex couples to marry discourage opposite-sex couples” from being channeled into responsible procreative opposite-sex marriages, the lawyer said only that under the rational basis standard, the court shouldn’t look too deeply into the bases for the ban, and that “some rational concerns” include the idea that a “genderless institution” of marriage would undermine the idea that children ideally would grow up with their biological mother and father.
One Justice wondered “how would that ever come about,” opposite-sex couples deciding they no longer want to get married if same-sex couples can. The lawyer responded that over time there would be a disinclination for opposite-sex couples to marry, to which the same Justice pointed to incentives like community property, inheritance, and similar benefits. Another question was asked about what the legislature itself has done in regard to the procreation argument. It was pointed out that a statute says unmarried parents have the same rights as married ones in the state, which seems to reject the procreation argument advanced in this case.
Asked about actual data on impact of same-sex marriage on opposite-sex marriages, the lawyer said in the Netherlands the marriage rate declined after same-sex couples could marry, but that there’s no way to “prove causation.”
Other questions related to the cultural customs at the time the marriage statues were enacted. One Justice pointed to the “sex-based assumptions were in the law based on customs of the time” and suggested that one marriage-related statute addresses “clergymen” who may perform marriages. He asked whether that necessarily means only men can perform marriages now, or was that, essentially, just an assumption made at the time that should be disregarded now?
At one point, the Justices disputed whether the legislative purpose could be gleaned from the text of the statutes. A Justice asked “when” the state statutes began to ban same-sex marriage, and when the lawyer responded that same-sex marriage was banned “since the beginning,” the questioning continued. A Justice asked “which year did same-sex marriage begin to be unlawful” prompting the response that the “statute was enacted in 1862 or 1863 and same-sex marriage was not lawful then.” But then he was asked “what [statutory] language” required that, because, the Justice said, references to gender in New Mexico law, where they do occur, are recent.
The lawyer for the attorney general’s office argued that the court can’t simply decide the question based on existing statutes: it needs to go further and rule based on the state constitution.
One Justice commented that the government can’t take sides on religious issues, and should stay out of the debate altogether.
During the constitutional portion of the argument, many of the familiar arguments were heard. The lawyer for same-sex couples argued in favor of strict scrutiny for laws that discriminate against gays and lesbians, while the other side argued for a more lenient rational basis standard.
In terms of whether a “fundamental right” is at stake in the case (which would require the strictest form of judicial scrutiny) the opposition argued that the court has to undertake a “careful description” of the right at issue. Because of this, he argued, the right at issue is not the freedom to marry, but the ‘right to marry someone of the same sex’.
A Justice quickly asked, “in Loving v. Virginia, was it the ‘right to marry’, or the ‘right to marry person of opposite race?’” A back-and-forth ensued over whether Loving should be read broadly to endorse a freedom to marry the person of one’s choice, or if it should be read strictly and narrowly to limit the right only to opposite-sex couples of different races. Several Justices pointed to what seems to be especially broad language in the Loving opinion itself, as well as other United States Supreme Court opinions. It wasn’t clear from the argument if the New Mexico Supreme Court had ever explicitly addressed a fundamental right to marry, with a Justice at one point suggesting they had not.
Another argument that’s familiar that also came up was the “parade of horribles” argument that same-sex marriage, and more specifically a recognition of a fundamental right to marry, will force the New Mexico Supreme Court to address polygamy, to which a Justice essentially asked “why [we] shouldn’t we take another look” at that issue. And the lawyer for the side opposing marriage equality asked the Justices to look at Mark Regnerus’ study for data on same-sex marriage’s impact on children.
The constitutional arguments addressed both the rational basis standard and a heightened form of judicial scrutiny, with the Justices avoiding hinting at which standard will apply in this case. Though some seemed unsure of even the rationality of a ban, with one Justice asking how it’s rational to ask same-sex couples from New Mexico to get married out of state and come back to be treated the same as anyone else; essentially, Justices wanted to know, how can the state say same-sex married couples are equal, they just can’t get married inside the state in front of people who live in the state?
The side opposing same-sex marriage addressed the heightened scrutiny argument, relying mostly on the “relative political powerlessness” prong of that analysis to argue that gays and lesbians are too politically powerful to warrant any form of enhanced scrutiny whatsoever. They pointed to the Democratic Party’s addition of same-sex marriage to the national and state platforms, as well as ballot initiatives and legislation to pass marriage equality in some states.
The lawyer arguing for the constitutionality of same-sex marriage suggested that the ban is sex-based and sexual orientation-based, and that either way, it implicates the fundamental right to marry which requires the strictest form of judicial scrutiny. While some Justices appeared hesitant to address a broad constitutional ruling, a consensus wasn’t necessarily obvious.
From the argument, it appeared that the Justices initially wanted to try to resolve the case without getting to the state constitutional issues, but none of the parties arguing before the court seemed to believe that the statutes alone would resolve the case in favor of same-sex marriage, a fact which seemed to be problematic for some Justices. But while the court seemed skeptical that the statutes ban same-sex marriage, they seemed genuinely interested in the constitutional issues, asking both sides probing questions.
The court didn’t set a time limit for a ruling, but the case is on an expedited track.