ABA Journal


Family Law

New Mexico Supreme Court legalizes same-sex marriage

Dec 19, 2013, 10:23 pm CST


I will be so very happy when all the states are on board with human evolution so that we can then focus the fight and energies towards matters that really do disrupt the peace and safety of our communities.

The LGBT community is not a threat. However hate groups, militias and organized crime are the matters where we need to be focusing our attentions.

By concernedcitizen on 2013 12 19, 11:51 pm CST

So until now, same sex marriage was criminal in New Mexico?

By B. McLeod on 2013 12 20, 12:15 am CST

The opinion is fundamentally unsound in its reasoning. Same sex couples are not "similarly situated" as opposite sex couples for equal protection grounds because marriage under the law does not include love as a basic component. The incorrect assumption inserted into these arguments is that legal marriages are framed by state law around the right to love. They are not about love or sexual attraction under state law. You can marry for any reason with or without love or sexual desire. So only those components, if they were required elements for marriage, would make these two kinds of marriages similar.

Moreover, constitutional protections apply to individual persons not couples. Couples have no constitutional rights.

Then there's the issue of how marriage law applies to all. Laws defining marriage as between one unrelated man and woman are equally applied to all. Each individual person is afforded the same rights and limitations. Gay men have married straight women for centuries; and nothing in the law precludes them from marrying a gay woman either. So it is not factual that gays are not allowed to marry. What is illegal is the state creating the institution of marriage by persons of the same sex. The state creating it.

Individuals on either side are precluded from a state created marriage involving same sex. Theoretically, a straight person could have a financial or legal reason for wanting to marry a same sex friend and it would be just as illegal for them as for a gay person who wishes to do so for love. Conversely, it is legal for a gay person to marry an opposite sex friend for any reason. No one will inquire as to why they would marry without love or sexual desire. No gay person must pass a litmus test to determine if they intend to be sexual with their opposite sex fiance nor is there scrutiny to require gays not to marry straight people. So from a constitutional standpoint both are treated the same under the law. The argument that they don't love an opposite sex person is irrelevant for whether the state can be required to create an institution of marriage for them.

These issues need to be decided by state legislatures not courts bending legal analysis into knots to pass social policy.

By cris on 2013 12 20, 3:42 am CST

Another opinion confusing what marriage is with whether there be a right or privilege to it, and there to permitting the challenging parties to define it, without reasonably explaining how and why the matter of definition has, as a matter of law, been classically left to the legislature. Of course, there is no disputing the common law of marriage, as a union between a man and a woman, and there not from religious practice, though it be integrated, but from custom and habit. There will be no integrity in this decision making until a court squarely faces the issue of what marriage is, taking into account how it has been viewed since at least the time of Hammurabi, and there according to our common law jurisprudence, not that of the Olympian. The NMSC is simply repudiating the common law without comment, and catering to special interest.

By gdp on 2013 12 20, 12:35 pm CST

@3 "bending legal analysis into knots": not sure if you criticizing it, or exemplifing it.

Like contract law, of which it is a subset, marriage is indeed not about love per se, but it is about free choice between two parties. The limitation of that choice must have a reasonable ground. The state could say, "People who are born on odd-numbered dates can only marry the same, and people who are married on even-numbered dates can only marry the same," or pass anti-miscegenation laws, and then claim there was no discrimination, since everyone is limited the same way. However, it is difficult to understant WHY everyone needs to be limited this same way. It works the same for Gay Marriage.

Grow a pair, go back to your drawing board, and give a positive reason for not allowing Gay Marriage. Own your own homophobia.

By IanC on 2013 12 20, 4:02 pm CST

No Ian, it's not homophobia to disagree on what marriage means and whether it's a constitutional issue. Supporting gay rights does not necessarily require supporting gay marriage. Believe it or not. There's a growing movement in France including famous gay men against gay marriage. You may want to study up on it as they are not intimidated by the American pressure to think about these issues in only one narrow way.

It's cultural Marxism to impose on others what they are allowed to think or be intimidated that they will be branded as homophobic, racist, sexist, or whichever label is used to silence a difference of opinion. Your angry comment is a good example of why many people who want to support nondiscrimination eventually decide not to get involved. Its hard to support nastiness and coercion.

By cris on 2013 12 21, 4:59 am CST

Cris, I am disagreeing with you, not imposing on you or intimidating you or coercing you. And I am even more sure of my position now: since you did not speak to my argument, I am convinced that your position is not based on a rational opposition to gay marriage, but rather an irrational, negative response to gays per se, aka homophobia. And I'm not angry, just exasperated that you will not speak plainly and simply, but would rather use convoluted arguments that are clever to no-one but yourself.

By IanC on 2013 12 21, 11:41 am CST

For those intrigued by Cris' red herring comments about France, I think he may be pointing toward this article

Cris, this article is a little old, but it does show you how you might fashion your argument: Marriage should not be extended to gays because marriage is a contract concerned exclusively with bearing and raising genetically related children. Inasmuch as gays can't do this, marriage is ultra vires for gays. This is an example of a positive argument. It is also, by the way, an example of a very bad argument. So don't go there unless you want the state to regulate marriage so oppressively.

By IanC on 2013 12 21, 7:42 pm CST

I disagree with Cris' analysis and argument but I'll give him credit for making one instead of the usual diatribe we often see on this subject. I can't entirely agree that couples have no constitutional rights. Marriage has been found to be a fundamental human right under our Constitution therefore certain rights are held by married couples.

By George Sly on 2013 12 25, 1:53 am CST

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