In today’s decision in Griego v. Oliver, the New Mexico Supreme Court struck down state laws that limit marriage to opposite sex couples. I welcome the result, but would have preferred that the court based its decision on the ground that laws banning same-sex marriage discriminate on the basis of gender.
The court ruled that the laws discriminate on the basis of sexual orientation, and that laws discriminating against gays and lesbians must be subject to heightened intermediate scrutiny “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.” Ruthann Robson has a good summary at the Constitutional Law Prof Blog. The court based its decision on the New Mexico state Constitution rather than the federal constitution, so it almost certainly will not be reviewed by the federal Supreme Court. New Mexico has thereby become the 17th state to recognize same-sex marriage.
Although the court ruled that bans on same-sex marriage are unconstitutional, it rejected the alternative argument that they violate the state constitution because they discriminate on the basis of sex, even though the New Mexico state constitution includes an Equal Rights Amendment that forbids sex classifications unless they have a “compelling justification.” Here is the court’s reasoning on that point:
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