                                                         I attest to the accuracy and
                                                          integrity of this document
                                                            New Mexico Compilation
                                                          Commission, Santa Fe, NM
                                                         '00'05- 16:00:53 2014.01.23

        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,

                                              1
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,

                                         2
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

                                            3
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.

                                           4
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.

                                          5
Albuquerque, NM

for Amicus Curiae
Professors at University of New Mexico School of Law

Gay & Lesbian Advocates & Defenders
Mary Bonauto
Boston, MA

Daniel Yohalem
Santa Fe, NM

for Amici Curiae
Equality New Mexico, National Organization for Women Foundation, New Mexico
National Organization for Women, PFLAG New Mexico, Southwest Women’s Law
Center, Freedom to Marry, Prosperity Works, American Veterans for Equal Rights-
Bataan Chapter, Transgender Resource Center of New Mexico, Human Rights Alliance,
Organizers in the Land of Enchantment, Media Literacy Project, New Mexico Lesbian
and Gay Lawyers Association, Anti-Defamation League, Pacific Association of Reform
Rabbis, Temple Beth Shalom of Santa Fe, The Unitarian Universalist Congregation of
Santa Fe, Rev. Talitha Arnold, Rev. Kathryn A. Schlechter, Rising Sun Ministries,
Metropolitan Community Church of Albuquerque

                                           OPINION

CHÁVEZ, Justice.

{1}      “All persons are born equally free, and have certain natural, inherent and inalienable
rights, among which are the rights of enjoying and defending life and liberty, of acquiring,
possessing and protecting property, and of seeking and obtaining safety and happiness.”
N.M. Const. art. II, § 4. These inherent rights, enjoyed by all New Mexicans, appear along
with twenty-three other provisions known as the New Mexico Bill of Rights, which include
the right to bear arms, freedom of speech, freedom of the press, freedom from unreasonable
government searches and seizures, due process, and the equal protection of the laws. See
N.M. Const. art. II, §§ 6, 10, 17, 18. When government is alleged to have threatened any of
these rights, it is the responsibility of the courts to interpret and apply the protections of the
Constitution. The United States Supreme Court explained the courts’ responsibility as
follows:

        The very purpose of a Bill of Rights was to withdraw certain subjects from
        the vicissitudes of political controversy, to place them beyond the reach of
        majorities and officials and to establish them as legal principles to be applied
        by the courts. One’s right to life, liberty, and property, to free speech, a free
        press, freedom of worship and assembly, and other fundamental rights may

                                                6
       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 long-
term, committed relationships, some of whom have raised foster and adoptive children
together, allege that they have a constitutional right under the Due Process and Equal
Protection provisions of New Mexico’s Bill of Rights to enter into civil marriages and to
enjoy the concomitant legal rights, protections, and responsibilities of marriage. Consistent
with our constitutional responsibility to determine whether legislation offends the New
Mexico Constitution, the question we must answer is whether the State of New Mexico may
decline to recognize civil marriages between same-gender couples and therefore deprive
them of the rights, protections, and responsibilities available to opposite-gender married
couples without violating the New Mexico Constitution.

{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


               1
                Every man [or woman] shall be free to worship God according to the
       dictates of his [or her] own conscience, and no person shall ever be molested
       or denied any civil or political right or privilege on account of his [or her]
       religious opinion or mode of religious worship. No person shall be required
       to attend any place of worship or support any religious sect or denomination;
       nor shall any preference be given by law to any religious denomination or
       mode of worship.

N.M. Const. art. II, § 11.

                                              7
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

                                               8
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 thirty-
three Clerks, filed an unopposed motion to intervene based on a common question of law
under Rule 1-024(B)(2) NMRA, stating their future intentions to “seek immediate review
from the state Supreme Court.” The Clerks asserted that they have a “need for an immediate
ruling that is applicable statewide and that resolves the constitutional questions at the highest
level of appellate review.”

{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

                                               9
violated Article II, Section 18 of the New Mexico Constitution. On September 5, 2013, the
Clerks filed, and we accepted, a verified petition for writ of superintending control. Prior
to accepting the writ in this case, this Court had denied two separate verified petitions for
writs of mandamus “without prejudice to the parties to pursue litigation of issues in the lower
court with a right to request expedited review.” See Hanna v. Salazar, No. 34,216 (non-
precedential order, N.M. Sup. Ct. Aug 15, 2013); Griego v. Oliver, No. 34,227 (non-
precedential order, N.M. Sup. Ct. Aug. 15, 2013). Both cases were subsequently decided
in the district courts. See State ex rel. Hanna v. Salazar, No. D-0101-CV-2013-02182, Aug.
22, 2013; Griego v. Oliver, D-202-CV-2013-02757, Sept. 3, 2013. In addition, a number of
other district courts have issued writs or orders requiring Clerks to issue marriage licenses
to same-gender couples in New Mexico. See State ex rel. Stark v. Martinez, No. D-820-CV-
2013-295, alternative writ of mandamus issued in the Eighth Judicial District Court on
August 27, 2013 affecting Taos County; State ex rel. Newton v. Stover, No. D-132-CV-2013-
00094, alternative writ of mandamus issued in the First Judicial District Court on August 29,
2013 affecting Los Alamos County; Katz v. Zamarripa, No. D-608-CV-2013-00235, final
order and permanent injunction issued in the Sixth Judicial District Court on September 5,
2013 affecting Grant County. Other cases are awaiting the outcome of the petition for writ
of superintending control that is presently before this Court.2

Our exercise of superintending control is appropriate in this case

{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-NMSC-
069, ¶¶ 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.



        2
         These cases include Gering v. Garbagni, No. D-1329-CV-2013-01715 (Sandoval
County) and three cases brought by state legislators to challenge the validity of licenses
already issued, in some cases where individual Clerks have issued marriage licenses to same-
gender couples, even without a court order directing them to do so. Sharer v. Ellins, No.
CV-2013-2061 (Doña Ana County); Sharer v. Rivera, No. D-412-CV-2013-00367 (San
Miguel County); Sharer v Carabajal, No. D-1314-CV-2013-01058 (Valencia County).

                                               10
{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 twenty-
one 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-

                                             11
five-year relationship. Their youngest daughter, who was only three when Miriam and Ona
combined households, legally changed her surname to Porter-Rand to reflect the importance
of both of the mothers in her life. Their middle daughter, Cherif, is physically disabled and
can no longer care for her fourteen-year-old daughter, who has cerebral palsy. Ona has
adopted Cherif’s daughter and Miriam plans to initiate a second-parent adoption. Until the
adoption is finalized, Miriam does not have automatic legal authority to make important
decisions for her granddaughter, whom she is helping to raise. Monica and Cecilia raised
Cecilia’s three children to adulthood during their fifteen-year relationship; all three children
consider Monica as another parent, and she considers them to be her children. Similarly,
Kim’s college-aged children refer to Rose as their step-mother. A.D. and Greg have no
biological children, but they maintain a relationship with their former long-term foster child
they raised who is now an adult, who calls them both Dad. Jen and Angelique adopted three
preschool-age brothers from the custody of the Children, Youth & Families Department and
have raised them together. The two youngest boys live with their mothers, while the eldest
left home after enlisting in the United States Army following his graduation from high
school. All three brothers support their mothers’ efforts to legally marry.

{18} The inability to legally marry has adversely impacted several of the Plaintiff couples
who have endured significant familial and medical hardships together. On one occasion,
when Rose was hospitalized, the hospital refused to provide Kim with any information about
Rose’s condition or treatment until Rose’s other family members arrived, despite the fact
that it was Kim who took Rose to the hospital. Miriam and Ona cared for each other’s aging
parents, and both women’s mothers passed away within one year of each other. However,
Miriam was not eligible for bereavement leave when Ona’s mother died, and Ona was not
eligible for bereavement leave when Miriam’s mother died. Also, due to restrictive next-of-
kin and family-only limitations on visitation and medical decision-making, Miriam and Ona
were forced to pretend to be sisters. Jen was diagnosed with an aggressive form of brain
cancer in late 2012, and doctors told her she had eighteen months to live. After surgery to
partially remove the tumor, Jen suffered a stroke, which impaired some of her physical and
cognitive functions. At the time Plaintiffs filed their complaint, Jen had been placed in an
assisted living facility, and Angelique was spending several hours each day with her.
Because Jen and Angelique could not legally marry, Angelique could not collect spousal
benefits as a result of Jen’s disability, despite their twenty-one-year relationship.

When read as a whole, New Mexico marriage statutes prohibit same-gender marriages

{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.

                                              12
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



       3
        See, e.g., §§ 40-2-1, -8.

                                              13
“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,

        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 same-
gender 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);

                                               14
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



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/christie-
withdraws-appeal-of-same-sex-marriage-ruling-in-new-jersey.html.

                                              15
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

                                              16
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. Gender-
neutral language is used throughout the Community Property Act. See §§ 40-3-6 to -17.
NMSA 1978, Chapter 40, Article 4 provides for the orderly dissolution of a marriage. See
§§ 40-4-1 to -20. Finally, the Family Preservation Act, NMSA 1978, §§ 40-15-1 to -4
(2005), also supports our conclusion that the overriding purpose of our marriage laws is the
stability of marriage for the benefit of married couples and their families. “The purpose of
the Family Preservation Act is to confirm the state’s policy of support for the family and to
emphasize the responsibilities of parents and the state in the healthy development of children
and the family as an institution.” Section 40-15-2. These statutes do not indicate a
legislative concern with whether a couple procreates. Instead, these statutes, when
considered as a whole, evince an overriding concern with protecting the stability of family
units, whether they are procreative or not.

{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

                                             17
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 same-
gender couples are similarly situated to opposite-gender couples.

               Therefore, with respect to the subject and purposes of Iowa’s
       marriage laws, we find that the plaintiffs are similarly situated compared to
       heterosexual persons. Plaintiffs are in committed and loving relationships,
       many raising families, just like heterosexual couples. Moreover, official
       recognition of their status provides an institutional basis for defining their
       fundamental relational rights and responsibilities, just as it does for
       heterosexual couples. Society benefits, for example, from providing
       same-sex couples a stable framework within which to raise their children and
       the power to make health care and end-of-life decisions for loved ones, just
       as it does when that framework is provided for opposite-sex couples.

Varnum v. Brien, 763 N.W.2d 862, 883 (Iowa 2009). We are persuaded that the same
analysis applies to same-gender couples in New Mexico who want to get married. Having

                                             18
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 same-
gender and opposite-gender couples in the challenged legislation does not result in the
unequal treatment of men and women. On the contrary, persons of either gender are treated
equally in that they are each permitted to marry only a person of the opposite gender. The
classification at issue is more properly analyzed as differential treatment based upon a
person’s sexual orientation.

{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

                                                19
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.” See NARAL, 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

                                               20
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 same-
gender couples by pointing to achievements that they have attained with respect to same-
gender 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


        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
       http://www.democrats.org/democratic-national-platform.

       The President and his administration support same-sex marriage. See Josh
       Earnest, President Obama Supports Same-Sex Marriage, The White House
       B l o g      ( M a y       1 0 ,     2 0 1 2 ,      7 : 3 1     P M ) ,
       http://www.whitehouse.gov/blog/2012/05/10/obama-supports-same-sex-
       marriage.      [http://assets.dstatic.org/dnc-platform/2012-National-
       Platform.pdf.]

       During the last five years, legislatures in seven United States
       jurisdictions—New Hampshire, Vermont, New York, the District of
       Columbia, Minnesota, Delaware, and Rhode Island—have voted to redefine
       marriage. See Defining Marriage: Defense of Marriage Acts and Same-Sex
       Marriage Laws, National Conference of State Legislatures ([current on] July
       26, 2013), http://www.ncsl.org/issues-research/human-services/same-sex-
       marriage-overview.aspx.

       Last year, the citizens of three States—Maine, Maryland, and
       Washington—decided to redefine marriage through a direct vote of the
       people. See Richard Socarides, Obama and Gay Marriage: One Year Later,
       T h e      N e w      Y o r k e r     ( M a y      6 ,   2 0 1 3 ) ,
       http://newyorker.com/online/blogs/newsdesk/2013/05/obama-and-gay-
       marriage-one-year-later.html.

{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 anti-
sodomy laws. See NMSA 1953, § 40A-9-61 (1963) ((Vol. 6, 2d Repl. Pamp.), repealed,
Laws 1975, ch. 109, § 8). Convictions for sodomy in New Mexico were upheld despite
constitutional challenges to these laws. See State v. Elliott, 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

                                            22
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

                                             23
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 anti-
discrimination laws.8 Only six states had recognized the validity of and enacted legislation
permitting same-gender marriages, or civil unions, at the time this opinion was filed:
Delaware, 79 Del. Laws ch. 19 (2013); Minnesota, 2013 Minn. Sess. Law Serv. 74 (West);
New Hampshire, 2009 N.H. Laws 60-66; New York, N.Y. Dom. Rel. Law § 10-a (Consol.
2011); Rhode Island, R.I. Gen. Laws § 15-1-1 (2013); and Vermont, 2009 Vt. Acts &
Resolves 3. Four states, Massachusetts, California, Iowa, and Connecticut, interpreted their
respective constitutions to require same-gender marriages. See In re Marriage Cases, 183
P.3d at 452; Kerrigan, 957 A.2d at 482; Varnum, 763 N.W.2d at 904; Goodridge, 798
N.E.2d at 968. In three states, Maine, Maryland, and Washington, the electorate voted in
favor of same-gender marriages. Ashley Fetters, Same-Sex Marriage Wins on the Ballot for
the First Time in American History, theatlantic.com (Nov. 7, 2012),
http://www.theatlantic.com/ sexes/archive/2012/11/same-sex-marriage-wins-on-the-ballot-
for-the-first-time-in-american-history/264704/ (listing the wording of each ballot proposal).
Finally, three states, New Jersey, Illinois, and Colorado, have legislation that grants same-
gender couples an alternative to civil marriage and makes available to them many of the
benefits granted to married couples. See Colo. Rev. Stat. §§ 14-15-102 to -119 (2013); 750
Ill. Comp. Stat. 75/1 to 75/90 (2011); N.J. Stat. Ann. 37:1-28 to -36 (2006).9 The history we
have just recounted demonstrates that the members of the LGBT community do not have
sufficient political strength to protect themselves from purposeful discrimination.

{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


       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
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

                                              25
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

                                               26
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

                                               27
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 opposite-
gender 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 opposite-
gender 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


        10
          It is doubtful that the government could preclude any couple from marrying because
they are unwilling or unable to procreate. See Eisenstadt v. Baird, 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
& 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 same-
gender parents are responsible parents. As we have previously discussed, many of the
Plaintiffs in this case have been in long-term, committed relationships, and many of them
are raising or have raised children and grandchildren. Plaintiffs Miriam and Ona have been
in a committed relationship for twenty-five years and have raised three children and one
grandchild. Plaintiffs A.D. and Greg have been in a committed relationship for seven years
and have raised a foster child together. Plaintiffs Monica and Cecilia have been in a
committed relationship for fifteen years and have raised three daughters together. Plaintiffs
Jen and Angelique have been in a committed relationship for twenty-one years and have
raised three adopted sons together, one of whom is serving our country as an enlisted soldier
in the United States Army.

{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

                                              29
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 same-
gender couples from enjoying the security that flows from the rights, protections, and
responsibilities that accompany civil marriage. There is no substantial relationship between
New Mexico’s marriage laws and the purported governmental interest of responsible child
rearing. There is nothing rational about a law that penalizes children by depriving them of
state and federal benefits because the government disapproves of their parents’ sexual
orientation.

{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.


                                             30
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


                                              31
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




                                         32
