Property Law Developments—Joseph William Singer

The Supreme Court of New Mexico opened the state to same-sex marriages in the case of Griego v. Oliver,  2013 WL 6670704 (N.M. 2013). It interpreted New Mexico statutes as denying the right of same-sex couples to marry and then held those statutes unconstitutional under the equal protection clause in Article 18 of Section II of the New Mexico Constitution. The court unanimously held that the statutes created a classification based on sexual orientation and that such statutes should be subject to intermediate scrutiny because the class of gay and lesbian persons has a history of being subject to discrimination and “deep-rooted prejudice against their integration into society.”

Applying that standard of review, the court found the classification unconstitutional. The state justified denying same-sex couples the right to marry on the ground that male-female marriages promoted “responsible procreation and child-rearing.” Although this is a legitimate government interest, the court found no relation between it and the decision to deny marriage to same-sex couples, partly because “fertility has never been a condition of marriage” and even if it was, same-sex couples can procreate and raise children responsibly. The court found that 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.” Given that purpose, the state could show no legitimate government interest in denying the civil status of marriage to same-sex couples.