Yesterday's unanimous ruling by the New Mexico Supreme Court holding that gay and lesbian couples have a constitutional right to marry is already playing out in predictable ways. LGBTQ advocacy groups celebrate the result, opponents decry it, and (shockingly, if you think about it) everyone else mostly shrugs. After all, yesterday's decision in Griego v. Oliver was just the latest in a heady string of wins for the marriage equality movement: Since November of last year, the number of gay marriage states has exploded from six (plus D.C.) to seventeen: From one-eighth of the states to one-third (and about 38 percent of the total population. Now pass the fruitcake!
But the court's decision is worth pausing to note for a few reasons:
1. The probable -- and deserved -- death of the "accidental procreation" argument.
One of the strangest arrows in the anti-equality quiver, the argument that marriage should be restricted to opposite-sex couples because they're the only ones who can procreate "naturally" somehow swayed a couple of state supreme courts (Washington and New York) in the mid-2000s. Under this view, marriage was needed as a way of uniting folks -- and making dads stick around -- after the "oops, we procreated again" moment.
The New Mexico court gave this the brush-off it deserves, noting simply that even if heterosexual error is one reason for marriage, it's not the only reason -- and certainly not a reason to exclude those who can't make babies the old-fashioned way.
2. The response to the "destabilization of marriage" fear.
There's a big difference between the kinds of arguments that might be taken seriously in an academic debate and those that prevail in a court of law. Opponents have long argued that allowing same-sex couples to marry will destabilize marriage by watering down its historic meaning. in his fruitless defense of Iowa's defense of marriage act a few years ago, the state's attorney argued that allowing same-sex couples would destroy marriage - not now, but at some unspecified time in the distant future.
The Iowa Supreme Court didn't buy it, but also didn't really address the point squarely. The New Mexico court did, stating that there was no evidence that allowing same-sex coupled to marry leads to straight couples divorcing. By implication, the court's position is that it's not enough to claim some fuzzy harm to traditional marriage -- proof is needed. And the only proof on hand is that of the current harm being done to same-sex couples (and their children; see below) that the court chronicled at sympathetic length.
3. The persistence of heightened scrutiny for laws based on sexual orientation
Until 2008, no court of last resort (either the U.S. Supreme Court or state supreme courts) had found that the LGBTQ community was entitled to have laws against them judged by a high degree of scrutiny. But we now have four state supreme court cases that have said exactly that, as New Mexico joins California, Connecticut, and Iowa. All four have signed onto the proposition that, given the historically shameful treatment of LGBTQ citizens, laws excluding members of the community should be viewed suspiciously. Despite its consistently progressive decisions in this area, the U.S. Supreme Court has thus far avoided taking the same step. This decision supplies one more reason for the Supremes to show the courage to agree with this obvious conclusion.
4. Those darn kids! (They keep winning cases for marriage equality!)
It's becoming clear that the opponents of marriage equality lost the battle years ago, when they didn't try to stop gay and lesbian couples from adopting kids. The New Mexico Supreme Court became just the latest tribunal to cite, repeatedly and with passion, the harm to the children of same-sex couples that follows from their parents' exclusion from the social and legal benefits of marriage. It's hard to argue with that, so most opponents don't even try, instead redirecting their energy toward the type of arguments made above. And the results are increasingly against them.
5. Look to the New Mexico Supreme Court for Progressive Rulings
In our stubbornly federalist system, different states have taken turns as champions of progressive values. In the 1970s, California carved out a reputation (variously lauded and lambasted) as the nation's most liberal court. After an electoral recall of some of the court's most progressive members, New Jersey emerged as a court that litigants could look to for well-reasoned, thoughtful decisions that usually moved civil and legal rights forward.
With this and several other decisions, the New Mexico Supreme Court has planted its own progressive flag. The court recently ruled that the state's antidiscrimination law covered a photographer's refusal to photograph a same-sex wedding. Perhaps even more notably, the court is the first -- and still the only -- to recognize that those in long-term, stable relationships can be recognized as "family" for purposes of a loss of consortium claim. Where other states have restricted the claim to married couples, the New Mexico justices saw a deeper reality in the 2003 case, Lozoya v. Sanchez: "[T]he use of a legal status...excludes many persons whose loss of a significant relational interest may be just as devastating as the loss of a legal spouse."
With its holding in Lozoya, the court may have previewed a set of important questions that the marriage equality debate misses, but that will stick around after this fight is over: How can the law value all families -- not just those who choose marriage?
******
This victory puts a nice, year-ending bow on a series of judicial and legislative gifts to the marriage equality movement. Things will get tougher legislatively in 2014, but there's a whole batch of promising federal lawsuits that should lead to full marriage equality soon. For now, let's pause to enjoy the progress.
But the court's decision is worth pausing to note for a few reasons:
1. The probable -- and deserved -- death of the "accidental procreation" argument.
One of the strangest arrows in the anti-equality quiver, the argument that marriage should be restricted to opposite-sex couples because they're the only ones who can procreate "naturally" somehow swayed a couple of state supreme courts (Washington and New York) in the mid-2000s. Under this view, marriage was needed as a way of uniting folks -- and making dads stick around -- after the "oops, we procreated again" moment.
The New Mexico court gave this the brush-off it deserves, noting simply that even if heterosexual error is one reason for marriage, it's not the only reason -- and certainly not a reason to exclude those who can't make babies the old-fashioned way.
2. The response to the "destabilization of marriage" fear.
There's a big difference between the kinds of arguments that might be taken seriously in an academic debate and those that prevail in a court of law. Opponents have long argued that allowing same-sex couples to marry will destabilize marriage by watering down its historic meaning. in his fruitless defense of Iowa's defense of marriage act a few years ago, the state's attorney argued that allowing same-sex couples would destroy marriage - not now, but at some unspecified time in the distant future.
The Iowa Supreme Court didn't buy it, but also didn't really address the point squarely. The New Mexico court did, stating that there was no evidence that allowing same-sex coupled to marry leads to straight couples divorcing. By implication, the court's position is that it's not enough to claim some fuzzy harm to traditional marriage -- proof is needed. And the only proof on hand is that of the current harm being done to same-sex couples (and their children; see below) that the court chronicled at sympathetic length.
3. The persistence of heightened scrutiny for laws based on sexual orientation
Until 2008, no court of last resort (either the U.S. Supreme Court or state supreme courts) had found that the LGBTQ community was entitled to have laws against them judged by a high degree of scrutiny. But we now have four state supreme court cases that have said exactly that, as New Mexico joins California, Connecticut, and Iowa. All four have signed onto the proposition that, given the historically shameful treatment of LGBTQ citizens, laws excluding members of the community should be viewed suspiciously. Despite its consistently progressive decisions in this area, the U.S. Supreme Court has thus far avoided taking the same step. This decision supplies one more reason for the Supremes to show the courage to agree with this obvious conclusion.
4. Those darn kids! (They keep winning cases for marriage equality!)
It's becoming clear that the opponents of marriage equality lost the battle years ago, when they didn't try to stop gay and lesbian couples from adopting kids. The New Mexico Supreme Court became just the latest tribunal to cite, repeatedly and with passion, the harm to the children of same-sex couples that follows from their parents' exclusion from the social and legal benefits of marriage. It's hard to argue with that, so most opponents don't even try, instead redirecting their energy toward the type of arguments made above. And the results are increasingly against them.
5. Look to the New Mexico Supreme Court for Progressive Rulings
In our stubbornly federalist system, different states have taken turns as champions of progressive values. In the 1970s, California carved out a reputation (variously lauded and lambasted) as the nation's most liberal court. After an electoral recall of some of the court's most progressive members, New Jersey emerged as a court that litigants could look to for well-reasoned, thoughtful decisions that usually moved civil and legal rights forward.
With this and several other decisions, the New Mexico Supreme Court has planted its own progressive flag. The court recently ruled that the state's antidiscrimination law covered a photographer's refusal to photograph a same-sex wedding. Perhaps even more notably, the court is the first -- and still the only -- to recognize that those in long-term, stable relationships can be recognized as "family" for purposes of a loss of consortium claim. Where other states have restricted the claim to married couples, the New Mexico justices saw a deeper reality in the 2003 case, Lozoya v. Sanchez: "[T]he use of a legal status...excludes many persons whose loss of a significant relational interest may be just as devastating as the loss of a legal spouse."
With its holding in Lozoya, the court may have previewed a set of important questions that the marriage equality debate misses, but that will stick around after this fight is over: How can the law value all families -- not just those who choose marriage?
******
This victory puts a nice, year-ending bow on a series of judicial and legislative gifts to the marriage equality movement. Things will get tougher legislatively in 2014, but there's a whole batch of promising federal lawsuits that should lead to full marriage equality soon. For now, let's pause to enjoy the progress.