Balkinization  

Friday, March 22, 2013

Same-sex marriage in New Mexico?

Andrew Koppelman



Has same-sex marriage been legal in New Mexico since 1972?

That is the year that the state adopted by referendum an equal rights amendment to the state constitution, prohibiting discrimination on the basis of sex.  New Mexico is the only state that has no law specifically dealing with same-sex marriage.  The Santa Fe City Attorney, Geno Zamora, has now opined that same-sex marriage is already legal in the state.  New Mexico’s marriage application form, specified in the statute, is “described in terms of male and female applicants,” but he reasons that the form is trumped by the state Equal Rights Amendment and the specific language of the statute, “which does not require that the applicants be of the opposite sex.”

The legal argument is sound.  Discrimination against same-sex couples is discrimination on the basis of sex:  if Lucy is allowed to marry Fred, but Ricky is not allowed to marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is being discriminated against because of his sex.  I’ve been saying this for years. 

For the most part, the argument has been ignored by courts.  If one understands the law as a realist such as Oliver Wendell Holmes did – as a prediction of what courts are going to do - it was clearly unsound:  when I first published it in 1989, one would have been crazy to predict that any court would accept the argument.  Its logical soundness didn’t matter.  Courts were predisposed to reject a huge range of gay rights claims.  Same-sex marriage was regarded as absurd by all but a few cranks (of which, as it happened, I was one).  A legal argument was defeated by cultural presuppositions.

The existence of such culturally rooted defeaters is an embarrassment for legal reasoning.  They clearly are a source of law, as the plaintiffs found in Singer v. Hara, 522 P.2d 1187 (Wash. 1974), which also involved a state-level ERA.  But there is no ritualized, lawyerly way to incorporate that source into a legal argument.  The reasoning of Singer is pathetically bad – go take a look at it – but it has been followed for years.

Now that defeater is disappearing.  Public opinion has shifted in favor of same-sex marriage with astonishing rapidity.  So Zamora’s argument may well prevail in court.  And if it does, the court will rely on sources of law that have been well established for forty years.  It won’t be changing the law.  It will simply be making inferences from indisputable premises.  Here, as elsewhere, shifts in the culture are making it possible for gay people to demand the constitutional rights that in some sense they already had.

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