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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMSC-003

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,
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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,
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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
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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.
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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.
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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 RightsBataan 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
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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.

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not be submitted to vote; they depend on the outcome of no elections.

W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Thus, when litigants

allege that the government has unconstitutionally interfered with a right protected by the Bill

of Rights, or has unconstitutionally discriminated against them, courts must decide the merits

of the allegation. If proven, courts must safeguard constitutional rights and order an end to

the discriminatory treatment.

{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 longterm, 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.

{3} 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,

456 U.S. 228, 244 (1982) (“[O]ne religious denomination cannot be officially preferred over

another.”). Instead we must depend upon legal principles to analyze the statutory and

constitutional bases for depriving same-gender couples from entering into a purely secular

civil marriage and securing the accompanying rights, protections, and responsibilities of

New Mexico laws. Our holding will not interfere with the religious freedom of religious

organizations or clergy because (1) no religious organization will have to change its policies

to accommodate same-gender couples, and (2) no religious clergy will be required to
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solemnize a marriage in contravention of his or her religious beliefs. See NMSA 1978, § 28-

1-9(B) & (C) (1969, as amended through 2004) (describing exemption of religious

organizations from the New Mexico Human Rights Act).

Summary

{4} 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 413 (internal quotation marks and citation omitted).

{5} 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.

{6} We conclude that the purpose of New Mexico marriage laws is to bring stability and
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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, 2010-NMCA-106, ¶ 19,

149 N.M. 66, 243 P.3d 1148. Therefore, denying marriage licenses to same-gender couples

would be tantamount to denying them the right to enter into a civil marriage with all of its

attendant legal rights, protections, and responsibilities. New Mexico County Clerks (Clerks)

are delegated the responsibilities of issuing marriage licenses to couples who are qualified

to enter into civil marriages and filing the licenses once the couples are married. NMSA

1978, § 40-1-10(A) (1905, as amended through 2013). The Doña Ana County Clerk

voluntarily began issuing marriage licenses to same-gender couples on August 21, 2013.

Several other Clerks did the same, while others did not do so until ordered by a court; yet

others continued to decline to issue marriage licenses to same-gender couples. A number

of lawsuits were initiated as a result of the Clerks’ actions.

{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.”

{9} 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 thirtythree 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.”

{10} 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
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 samegender 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).

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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 (nonprecedential order, N.M. Sup. Ct. Aug 15, 2013); Griego v. Oliver, No. 34,227 (nonprecedential 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-CV2013-295, 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

{11} 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-NMSC069, ¶¶ 7-8, 120 N.M. 619, 904 P.2d 1044 (internal quotation marks and citations omitted).

{12} In Schwartz, we exercised our discretion to decide a double jeopardy question that

had created uncertainty in the courts “[i]n order to provide a prompt and final resolution to

this troubling question.” Id. ¶ 9. The Clerks urge us to exercise our power of superintending

control as we did in Schwartz because they are also in a position of uncertainty regarding

their responsibilities to issue same-gender marriage licenses.
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{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.

{16} 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 twentyone years.

{17} 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-
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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-ofkin 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

{19} 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, 2012-NMSC-019, ¶ 18 (“[W]e seek to

avoid an interpretation of a statute that would raise constitutional concerns.”).

{20} Our principal goal in interpreting statutes is to give effect to the Legislature’s intent.
3

See, e.g., §§ 40-2-1, -8. 

13

Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047. The Legislature first enacted

our State’s basic marriage statutes in 1862. Our analysis begins with NMSA 1978, Section

40-1-1 (1862-63), which provides that “[m]arriage is contemplated by the law as a civil

contract, for which the consent of the contracting parties, capable in law of contracting, is

essential.” “Each couple desiring to marry pursuant to the laws of New Mexico shall first

obtain a license from a county clerk of this state and following a ceremony conducted in this

state file the license for recording in the county issuing the license.” Section 40-1-10(A).

Although the references to the phrase “contracting parties” in Section 40-1-1 and the term

“couple” in Section 40-1-10(A) are gender-neutral and suggest that same-gender marriages

may not be prohibited, we must read these phrases in context with other statutes relating to

marriage. See State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939 (“[A]

statutory subsection may not be considered in a vacuum, but must be considered in reference

to the statute as a whole and in reference to statutes dealing with the same general subject

matter.” (internal quotation marks and citation omitted)).

{21} As early as 1905, the Legislature also developed forms “[t]o insure a uniform system

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, 2013-NMSC-042, ¶ 26, 309 P.3d 89. In the context of marriage, “groom” and

“bride” are gender-specific terms. See The American Heritage Dictionary 230 (5th ed. 2011)

(defining “bridegroom” as “[a] man who is about to be married or has recently been married”

and “bride” as “[a] woman who is about to be married or has recently been married”).

{22} In 1961, the Legislature amended the application form for a marriage license to

specifically call for a “Male Applicant” and a “Female Applicant.” NMSA 1978, § 40-1-18

(1953, amended 1961). The marriage certificate also required the signatures of a groom and

a bride. The amendment of the application form and the fact that the marriage forms have

remained the same since 1961 suggest that the Legislature intended a civil marriage to be

between a man and a woman. The consanguinity provisions contained in NMSA 1978,

Section 40-1-7 (1876, as amended through 2013) that void marriages between a male and

certain female relatives and between a female and certain male relatives also suggest that the

Legislature did not intend to permit same-gender couples to marry. Finally, the provisions

in NMSA 1978, Chapter 40, Article 2 (1901, as amended through 1973) that define the rights

of married persons generally refer to “husband and wife”3

; the provisions in NMSA 1978,

Chapter 40, Article 3 (1907, as amended through 1997) address the property rights of
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. ___, 133 S. Ct. 2675, federal

agencies have engaged in a pattern and practice of limiting the extension of benefits to samegender couples who have a valid marriage certificate, declining to extend the benefits to

same-gender couples in a civil union or domestic partnership. This pattern and practice is

what prompted New Jersey to declare its civil union legislation unconstitutional. Garden

State Equal. v. Dow, ___ A.3d ___, ___, 2013 WL 6153269, at *1 (N.J. Super. L. 2013);

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“husband and wife”4

; and the provisions in NMSA 1978, Chapter 40, Article 4 (1901, as

amended through 2011) address the dissolution of marriage between “husband and wife.”5

See Garcia v. Jeantette, 2004-NMCA-004, ¶ 18, 134 N.M. 776, 82 P.3d 947 (“ ‘Either

party,’ as that term is used in Section 40-4-7(A), can logically only refer to the parties to the

underlying domestic relations proceeding, that is, husband and wife.”). “Husband” and

“wife” are gender-specific terms. See Black’s Law Dictionary 810, 1735 (9th ed. 2009)

(defining “husband” as “[a] married man” and “wife” as “[a] married woman”).

{23} Thus, we conclude that a mix of gender-neutral and gender-specific terminology in

the domestic relations statutes does not mean that the Legislature intended to authorize

marriage between same-gender couples. On the contrary, we conclude that the statutory

scheme reflects a legislative intent to prohibit same-gender marriages. See Goodridge v.

Dep’t of Pub. Health, 798 N.E.2d 941, 953 (Mass. 2003) (Because state law is “silent as to

the consanguinity of male-male or female-female marriage applicants . . . the Legislature did

not intend that same-sex couples be licensed to marry.”); Li v. State, 110 P.3d 91, 96 (Or.

2005) (en banc) (state law specifies that marriage is a civil contract entered into by a male

and a female); Baker v. State, 744 A.2d 864, 869 (Vt. 1999) (state law specifies that marriage

licenses specify “bride,” which is defined as a woman, and “groom,” which is defined as a

man).

{24} Even if we were to conclude that the gender-neutral language in Sections 40-1-1 and

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. ___, ___, ___, 133 S. Ct. 2675, 2694, 2695-96 (2013)

(striking down Section 3 of the federal Defense of Marriage Act (DOMA), Pub. L. No. 104-

199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (1977); 28 U.S.C. § 1738C (1997)), and

holding that the federal government must extend federal marital benefits to same-gender

couples lawfully married in states that recognize same-gender civil marriages6

). However,
affirmed by Garden State Equal. v. Dow, ___ A.3d ___, ___, 2013 WL 5687193, at *1 (N.J.

2013). Governor Christie withdrew his appeal of the Superior Court decision, thus leaving

the court’s decision making same-gender marriage legal in New Jersey the controlling law.

See Kate Zernike and Marc Santora, As Gays Wed in New Jersey, ChristieEnds Court Fight,

N.Y. Times, Oct. 21, 2013, http://www.nytimes.com/2013/10/22/nyregion/christiewithdraws-appeal-of-same-sex-marriage-ruling-in-new-jersey.html.

15

the phrasing of many of New Mexico’s statutes limits the concomitant state-based rights,

protections, and responsibilities of marriage to opposite-gender married couples. See nn.3

& 4, supra. Were we to interpret the marriage statutes as permitting same-gender marriages,

we would still have to decide whether depriving same-gender married couples of

concomitant state-based marital rights, protections, and responsibilities violates the Equal

Protection Clause of Article II, Section 18 of the New Mexico Constitution. Therefore,

despite the lack of an express legislative prohibition against same-gender marriage, we will

analyze the constitutionality of denying same-gender couples the right to marry and

depriving them of “the essential protections and responsibilities attendant on marriage.”

Plaintiffs’ constitutional challenge is based on equal protection and a claim that the

right to marry is a fundamental right

{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.

{26} 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?

{27} 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.

2005-NMSC-028, ¶ 10. If it does, we then determine the level of scrutiny that applies to the

challenged legislation and conclude the analysis by applying the appropriate level of scrutiny

to determine whether the legislative classification is constitutional.

Same-gender couples who seek to marry are situated similarly to opposite-gender
16

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

(NARAL), 1999-NMSC-005, ¶ 40, 126 N.M. 788, 975 P.2d 841(internal quotation marks and

citation omitted). None of the parties dispute the fact that children benefit from stable family

relationships. However, the history of New Mexico’s marriage statutes does not support the

contention that the overriding purpose of Chapter 40 is “responsible procreation and

childrearing.” Our review of the marriage statutes dating back to 1862 has not revealed any

language, either implicit or explicit, that requires applicants for a marriage license to attest

to their ability or intention to conceive children through sexual relationships. Counsel for

the opponents of same-gender marriage also cannot cite to any such language.

{31} Fertility has never been a condition of marriage, nor has infertility ever been a

specific ground for divorce. Beginning in 1884, a divorce could only be granted on specific

grounds, which at the time only included “adultery, cruel or inhuman treatment and

abandonment.” 1884 Compiled Laws of New Mexico, Title X, ch. II, § 998. In 1915,

“impotency” was added as another specified ground for divorce, 1915 Compiled Laws of

New Mexico, ch. LV, § 2773, but neither infertility nor unwillingness to have children has

ever been specific grounds for divorce.

{32} Even assuming arguendo that procreation is the overriding purpose of the New

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.

{35} 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. Genderneutral 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.

{36} 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, 183 P.3d 384 (Cal. 2008), the California Supreme Court concluded that the two

classes are similarly situated because:

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, 129 P.3d 29, 37 (Cal. 2006)), superseded by

constitutional amendment as stated in Strauss v. Horton, 207 P.3d 48, 115 (Cal. 2009) and

Hollingsworth v. Perry, ___ U.S. ___, ___, 133 S. Ct. 2652, 2659 (2013).

{37} In Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008), the

opponents of same-gender marriages argued that same-gender couples are not similarly

situated to opposite-gender couples because same-gender couples seek to marry someone of

the same sex, unlike opposite-gender couples. Id. at 423-24. The Connecticut Supreme

Court rejected this argument, noting that other than wanting to marry someone of the same

sex, same-gender couples otherwise meet all of the eligibility requirements for marriage,

including the public safety requirements of age and consanguinity. Id. at 424. In addition,

same-gender couples “share the same interest in a committed and loving relationship as

heterosexual persons who wish to marry, and they share the same interest in having a family

and raising their children in a loving and supportive environment.” Id.

{38} The Iowa Supreme Court advanced a similar rationale in recognizing that samegender 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, 2005-NMSC-028, ¶ 12. Second,

if the statutes treat differently a sensitive class such as persons with a mental disability, an

intermediate standard of review applies, which requires the party supporting the statutes to

prove that the legislation is substantially related to an important governmental interest. Id.

¶ 28. Third, if the statutes in question are social or economic legislation that do not treat a

suspect or sensitive class differently, the most deferential standard of review, rational basis,

applies, and the burden is on the party challenging the statutes to prove that the legislation

is not rationally related to a legitimate governmental purpose. Id. ¶ 11.

{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, 1999-NMSC-005, ¶ 43, to support their argument that New

Mexico legislation which creates gender-based classifications must have a “compelling

justification” to satisfy the Equal Rights Amendment to Article II, Section 18 of the New

Mexico Constitution.

{41} We do not agree that the marriage statutes at issue create a classification based on

sex. Plaintiffs have conflated sex and sexual orientation. The distinction between samegender 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.

{42} 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,

232 F.3d 33, 35 (2d Cir. 2000) (“Congress’s refusal to expand the reach of Title VII is strong

evidence of congressional intent in the face of consistent judicial decisions refusing to

interpret ‘sex’ to include sexual orientation.”).

{43} Many courts that have considered the issue have applied the equal protection analysis

in same-gender marriage cases based upon sexual orientation, not gender. See In re

Marriage Cases, 183 P.3d at 436-40 (declining to analyze the equal protection challenge on

the basis of sex because the distinct class is more properly viewed as being based on sexual

orientation); Hernandez v. Robles, 855 N.E.2d 1, 10-11 (N.Y. 2006) (same); see also Lewis

v. Harris, 908 A.2d 196, 212-16 (N.J. 2006) (evaluating equal protection challenge in a

same-gender marriage case on the basis of sexual orientation). Our analysis of sex

discrimination cases has been gender-based, scrutinizing the historical discrimination against

women. NARAL, 1999-NMSC-005, ¶¶ 36, 41, 47. For these reasons, we conclude that in

a case involving same-gender marriage, the equal protection challenge should not be

analyzed as a case involving sex discrimination, but must be analyzed as a case involving

discrimination based on a person’s sexual orientation.

Classification on the basis of sexual orientation requires intermediate scrutiny

{44} 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., 1988-NMSC-084, ¶ 27, 107

N.M. 688, 763 P.2d 1153 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

28 (1973), overruled on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031,

¶ 36, 125 N.M. 721, 965 P.2d 305). Race, national origin, and alienage are considered

suspect classifications. Richardson, 1988-NMSC-084, ¶ 27. In addition, we have treated

gender-based statutory classifications as suspect. See NARAL, 1999-NMSC-005, ¶ 27.

{45} In NARAL, we acknowledged that federal courts have analyzed gender discrimination

cases by applying intermediate scrutiny, but we chose to apply a greater level of scrutiny.

Id. ¶ 37. We held that legislation which involved gender-based classifications would be

presumed to be unconstitutional, and the government would have the burden of establishing

a compelling justification for the legislation. Id. ¶¶ 36, 43. A key rationale for applying

strict scrutiny was the 1973 addition of the Equal Rights Amendment to Article II, Section

18 of the New Mexico Constitution, which added the language “[e]quality of rights under

law shall not be denied on account of the sex of any person.” SeeNARAL, 1999-NMSC-005,

¶ 29. Before this addition, Article II, Section 18 had only the language “[n]o person shall

be deprived of life, liberty or property without due process of law; nor shall any person be

denied equal protection of the laws.” N.M. Const. art. II, § 18 (1972). We concluded that
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., 2010-NMSC-009,

¶¶ 26, 25-28, 147 N.M. 583, 227 P.3d 73 (citing Trujillo v. City of Albuquerque, 1990-

NMSC-083, ¶ 55, 110 N.M. 621, 798 P.2d 571 (Montgomery, J., concurring in part,

dissenting in part) (Trujillo I)), overruled in later appeal on other grounds by Trujillo v. City

of Albuquerque, 1998-NMSC-031, ¶ 36 (Trujillo II).

21

to honor the intent of the citizens of New Mexico to expand the guarantees of our Equal

Protection Clause, we were obligated to apply a level of scrutiny greater than the one that

was being applied by federal courts, particularly because the United States Constitution does

not have a counterpart to New Mexico’s Equal Rights Amendment. NARAL,

1999-NMSC-005, ¶¶ 29, 37 (quoting Op. of the Justices to the House of Representatives, 371

N.E.2d 426, 428 (Mass. 1977) (“ ‘To use a standard . . . which requires any less than the

strict scrutiny test would negate the purpose of the equal rights amendment and the intention

of the people in adopting it.’ ”)).

{46} Another key rationale for applying strict scrutiny to gender-based classifications was

the history of invidious discrimination against women, including restrictions on their rights

to vote, hold public office, NARAL, 1999-NMSC-005, ¶¶ 32-34, and other “early laws [that]

continued to reflect the common-law view ‘that women were incapable mentally of

exercising judgment and discretion and were classed with children, lunatics, idiots, and

aliens insofar as their political rights were concerned.’” Id. ¶ 34 (quoting State v. Chaves

de Armijo, 1914-NMSC-021, ¶ 27, 18 N.M. 646, 140 P. 1123). We credited the Equal

Rights Amendment with causing the amendment and repeal of many of these laws. NARAL,

1999-NMSC-005, ¶ 35. Based on this analysis, we concluded that the “Equal Rights

Amendment is a specific prohibition that provides a legal remedy for the invidious

consequences of . . . gender-based discrimination,” and therefore “requires a searching

judicial inquiry concerning state laws that employ gender-based classifications.” Id. ¶ 36.

{47} In this case, the issue we must decide is whether a classification based on an

individual’s sexual orientation parallels classifications based on gender, race, national origin,

and alienage, and whether it should therefore be treated as a suspect classification. The

opponents of same-gender marriage argue that same-gender couples are not even a sensitive

class because same-gender couples “possess political power that vastly exceeds their small

percentage of the population,” and therefore, if they do not qualify as a sensitive class, they

cannot be considered a suspect class. These opponents illustrate the political power of samegender couples by pointing to achievements that they have attained with respect to samegender marriages7

:

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

Blog (May 10, 2012, 7:31 PM),

http://www.whitehouse.gov/blog/2012/05/10/obama-supports-same-sexmarriage. [http://assets.dstatic.org/dnc-platform/2012-NationalPlatform.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-sexmarriage-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,

The New Yorker (May 6, 2013),

http://newyorker.com/online/blogs/newsdesk/2013/05/obama-and-gaymarriage-one-year-later.html.

{48} 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 antisodomy 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, 1976-NMSC-030, ¶ 9, 89 N.M.

305, 551 P.2d 1352 (reversing the Court of Appeals insofar as it held the sodomy statute

unconstitutional). However, perhaps more importantly, as we previously noted in paragraph

42, supra, New Mexico has recently enacted legislation to prohibit discrimination against

individuals based upon their sexual orientation, 2003 N.M. Laws, ch. 383, § 2; enacted

legislation to prohibit law enforcement officers from profiling individuals based on their

sexual orientation, § 29-21-2; and added sexual orientation as a protected class under hate

crimes legislation, § 31-18B-2(D). None of this legislation would have been required if the

LGBT community was not a discrete group which has experienced a history of purposeful

unequal treatment and acts of violence.

{49} Refocusing on the contention that the LGBT community is not politically powerless,

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, 2005-NMSC-028, ¶¶ 28-29

(applying intermediate scrutiny to legislation adversely affecting persons with mental

disabilities because their political advocacy remains seriously hindered despite their gains

in society). The political advocacy of the LGBT community continues to be seriously

hindered, as evidenced by the uncontroverted difficulty in determining whether LGBTs are

under-represented in positions of political power, because many of them keep their sexual

orientation private to avoid hostility, discrimination, and ongoing acts of violence. See

Richard M. Valelly, LGBT Politics and American Political Development, Annu. Rev. Polit.

Sci. 2012. 15:313-32 (2012). FBI statistics show that the rates of hate crimes committed

against individuals based on sexual orientation have remained relatively constant over the

past two decades, although they have risen slightly in the past few years, both in absolute

numbers and expressed as a percentage of all types of hate crimes. Fed. Bureau of

Investigation, Uniform Crime Reports: Hate Crime Statistics 1996 through 2012, available

at http://www.fbi.gov/about-us/cjis/ucr/ucr-publications. It is reasonable to expect that the

need of LGBTs to keep their sexual orientation private also hinders or suppresses their

political activity. See Windsor v. United States, 699 F.3d 169, 184-85 (2d Cir. 2012) (“their

position ‘has improved markedly in recent decades,’ but they still ‘face pervasive, although

at times more subtle, discrimination . . . in the political arena.’” (quoting Frontiero v.

Richardson, 411 U.S. 677, 685-86 (1973)).

{50} Although the LGBT community has had political success, they have also seen their

gains repealed by popular referendums. Romer v. Evans, 517 U.S. 620 (1996) and In re

Marriage Cases provide two good examples. In Romer, numerous municipalities in

Colorado enacted ordinances that prohibited discrimination against gays and lesbians in

housing, employment, education, public accommodations, and health and welfare services.

517 U.S. at 623-24. In response to the enactment of such ordinances, the voters of Colorado

amended the Colorado Constitution to preclude the three branches of government at any

level of state or local government from protecting gays and lesbians against discrimination.

C.R.S.A. Const. art. 2, § 30b; Romer, 517 U.S. at 624. The constitutional amendment

adopted by the voters reads:

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
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.

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).

{51} 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 antidiscrimination 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-ballotfor-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 samegender 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.

{52} 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, 2005-NMSC-028, ¶ 21. This requirement cannot mean that the

individual must be completely unable to change the characteristic. See In re Marriage
25

Cases, 183 P.3d at 442 (recognizing that other classifications such as religion and alienage

that receive heightened scrutiny do so despite the fact that individuals can change their

religion or become citizens); Varnum, 763 N.W.2d at 893 (“The constitutional relevance of

the immutability factor is not reserved to those instances in which the trait defining the

burdened class is absolutely impossible to change.”). Instead, the question is whether the

characteristic is so integral to the individual’s identity that, even if he or she could change

it, would it be inappropriate to require him or her to do so in order to avoid discrimination?

We agree with those jurisdictions which have answered this question affirmatively regarding

LGBTs. See Kerrigan, 957 A.2d at 438-39 (holding that gays and lesbians are entitled to

consideration as a quasi-suspect class because “they are characterized by a central, defining

[trait] of personhood, which may be altered [if at all] only at the expense of significant

damage to the individual’s sense of self”) (internal quotation marks and citation omitted);

see also In re Marriage Cases, 183 P.3d at 442 (“Because a person’s sexual orientation is

so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate

or change his or her sexual orientation in order to avoid discriminatory treatment.”);

Varnum, 763 N.W.2d at 893 (same).

{53} Therefore, we conclude that intermediate scrutiny must be applied in this case

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.”

2005-NMSC-028, ¶ 18. Nor does intermediate scrutiny require the same level of

extraordinary protection from the majoritarian political process that strict scrutiny demands.

Id. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest

period of discrimination may have passed for a historically maligned group.” Id. ¶ 20. Our

decision to apply intermediate scrutiny is consistent with many jurisdictions which have

considered the issue. Windsor v. United States, 699 F.3d at 185; Kerrigan, 957 A.2d at 475-

76; Varnum, 763 N.W.2d at 896.

It is unclear whether the right to marry is a fundamental right requiring strict scrutiny

{54} 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, 388 U.S. at 12

(“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and

survival.”) (quoting Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535, 541

(1942)). The United States Supreme Court also has described the right to marry as “of

fundamental importance for all individuals” and as “part of the fundamental ‘right of

privacy’ implicit in the Fourteenth Amendment’s Due Process Clause.” Zablocki v. Redhail,

434 U.S. 374, 384 (1978); see also Loving, 388 U.S. at 12 (“The freedom to marry has long

been recognized as one of the vital personal rights essential to the orderly pursuit of

happiness by free men.”). When fundamental rights are affected by legislation, the United

States Supreme Court has applied strict scrutiny when determining whether the legislation

is constitutional. Clark v. Jeter, 486 U.S. 456, 461 (1988). However, regarding marriage,

the United States Supreme Court does not demand “that every state regulation which relates

in any way to the incidents of or prerequisites for marriage must be subjected to rigorous

scrutiny.” Zablocki, 434 U.S. at 386. For example, in Turner v. Safley, 482 U.S. 78, 81,

95-97 (1987), the Supreme Court rejected the lower court’s application of strict scrutiny to

a prisoner’s right to marry, noting that the prisoner’s fundamental right to marry, “like many

other rights, is subject to substantial restrictions as a result of incarceration.” Id. at 95. In

United States v. Windsor, the Supreme Court left unanswered the level of scrutiny it was

applying to same-gender marriages. ___ U.S. at ___, 133 S. Ct. at 2706 (Scalia, J.,

dissenting, noting that the majority “does not apply strict scrutiny, and its central

propositions are taken from rational-basis cases”). We conclude from the United States

Supreme Court’s equivocation in these cases that whether the right to marry is a fundamental

right requiring strict scrutiny is a question that remains unanswered. We do not need to

answer this question here because Plaintiffs prevail when we apply an intermediate scrutiny

level of review under an equal protection analysis.

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

{56} 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, 2005-NMSC-028, ¶ 30. Once the

governmental interest is identified, we must balance that interest against the burdens placed

on the sensitive class compared to others who are similarly situated. Id. ¶ 31. We consider

whether the legislation is over- or under-inclusive in its application, and attempt to determine

whether the legislation is the least restrictive alternative for protecting the important

governmental interest. Id. ¶ 32.

{57} We have interpreted the argument of the opponents of same-gender marriage as

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, 2005-NMSC-016, ¶ 24, 137 N.M. 734, 114 P.3d 1050 (the party with the

burden of proof in a constitutional challenge must support his or her argument with a “firm

legal rationale” or evidence in the record (internal quotation marks and citation omitted)).

To the extent that the deinstitutionalization argument was intended to inject into the analysis

moral disapprobation of homosexual activity and tradition—that marriage has traditionally

been between a man and a woman—both justifications have been rejected.

{58} In Lawrence v. Texas, 539 U.S. 558, 582 (2003), the United States Supreme Court

made it clear that it has “never held that moral disapproval, without any other asserted state

interest, is a sufficient rationale under the Equal Protection Clause to justify a law that

discriminates among groups of persons.” It is not appropriate to define the State’s interest

as maintaining the tradition of marriage only between opposite-gender couples, any more

than it was appropriate to define the state’s interest in Loving, 388 U.S. at 12, as only

maintaining same-race marriages. Articulating the governmental interest as maintaining the

tradition of excluding same-gender marriages because “the ‘historic and cultural

understanding of marriage’ has been between a man and a woman—cannot in itself provide

a [sufficient] basis for the challenged exclusion. To say that the discrimination is

‘traditional’ is to say only that the discrimination has existed for a long time.” Kerrigan, 957

A.2d at 478.

{59} We are left to decide whether prohibiting same-gender marriage with all of its

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.

{60} 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
10It is doubtful that the government could preclude any couple from marrying because

they are unwilling or unable to procreate. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)

(“If the right of privacy means anything, it is the right of the individual, married or single,

to be free from unwarranted governmental intrusion into matters so fundamentally affecting

a person as the decision whether to bear or beget a child.”).

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, 397 U.S. 471, 529 (1970)

(Marshall, J., dissenting). Regarding the purported legislative goal of responsible

procreation, the legislation is under-inclusive because the statutes do not prohibit oppositegender couples from marrying, even if they do not procreate because of age, physical

disability, infertility, or choice.10 Finally, although it is not clear what the opponents of

same-gender marriage mean by “responsible procreation,” when childless same-gender

couples decide to have children, they necessarily do so after careful thought and considerable

expense, because for them to raise a family requires either lengthy and intrusive adoption

procedures or assistive reproduction.

{61} Same-gender couples are as capable of responsible procreation as are oppositegender couples. We conclude that there is not a substantial relationship between New

Mexico marriage laws and the purported governmental interest in responsible procreation.

{62} 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.,

1992-NMCA-012, ¶ 19, 113 N.M. 581, 829 P.2d 660. This Court has held that same-gender

couples have custody rights to children under the New Mexico Uniform Parentage Act,

NMSA 1978, §§ 40-11A-101 to -903 (2009), because, among other reasons, “it is against

public policy to deny parental rights and responsibilities based solely on the sex of either or

both of the parents.” Chatterjee, 2012-NMSC-019, ¶¶ 5, 37. The American Psychological

Association, which filed a brief amicus curiae in this case, cites to studies indicating that

there is no scientific evidence that parenting effectiveness is related to the parents’ sexual

orientation. See M.E. Lamb, Mothers, Fathers, Families, and Circumstances: Factors

Affecting Children’s Adjustment, 16 Applied Developmental Sci. 98-111 (2012); M.E. Lamb
29

& C. Lewis, The Role of Parent-Child Relationships in Child Development, in

Developmental Science: An Advanced Textbook 429-68 (M.H. Bornstein & M.E. Lamb eds.,

5th ed. 2005); C.J. Patterson & P.D. Hastings, Socialization in the Context of Family

Diversity, in Handbook of Socialization: Theory and Research 328-51 (J.E. Grusec & P.D.

Hastings eds., 2007).

{63} We need not go further than the record in this case for persuasive evidence that samegender 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.

{64} 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 healthcare 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 healthcare 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 healthcare decisions for
30

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. 2012-NMSC-019, ¶¶ 34-37.

{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.

{67} Excluding same-gender couples from civil marriage prevents children of samegender 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.

{68} 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.

{70} 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.

{71} 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
32

Topic Index for Griego v. Oliver, No. 34,306

CIVIL PROCEDURE

Real Party in Interest

CIVIL RIGHTS

Discrimination

Human Rights Act

Sexual Orientation Discrimination

CONSTITUTIONAL LAW

Civil Rights

Equal Protection

New Mexico Constitution, General

DOMESTIC RELATIONS

Domestic Relations, General

GOVERNMENT

Counties

JUDGMENT

Declaratory Judgment

REMEDIES

Writ of Superintending Control

STATUTES

Constitutionality

Interpretation 

Legislative Intent