In-depth look at how New Mexico won gay marriage

New Mexico is now the 17th state (plus D.C.) to legalize gay marriage, thanks to a ruling by the New Mexico Supreme Court.

Now it’s time to look at the ruling itself and figure out the arguments and implications. In this loooong post, I’ll go through the ruling paragraph by paragraph and pull out all the interesting bits.

The required: “I’m no attorney but…” Hey, the language is actually rather straightforward and not difficult to figure out.

gay marriage

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Untangling an untenable legal mess

Like the case in New Jersey not that long ago, the New Mexico courts were brought in to deal with an untenable situation.

In New Jersey, it was the inherent inequality of civil unions for gay couples, rather than real marriage. This situation was further complicated after the U.S. Supreme Court overturned Section 3 of DOMA this past June, which had prohibited the Federal government from recognizing legally enacted same sex marriages.

Since then, the Feds have made it clear that civil unions and domestic partnerships don’t rise to the level of ‘marriage’ for federal law. Hence civil unions had to be replaced with actual civil marriage.

New Mexico’s situation was different: The state Constitution has specific measures to say that discrimination on the basis of gender is illegal — and this rationale has been used several times to extend non-discrimination rights to LGBT New Mexicans.

Moreover, New Mexico’s general marriage law, as written, makes no reference to gender, a situation that was used by one county clerk in 2004 to attempt to extend marriage rights, but was turned back.

At the time, the 2004 lower court ruling and temporary injunction directed the NM state legislature to deal with the conflict — and they never did. Conservative groups, especially the Catholic Church, lobbied heavily every time the issue came up for consideration, and always successfully derailed any move towards marriage equality, even for something as unequal as a domestic partnership registry.

On top of this, back in August of this year, a Doña Ana county clerk began issuing marriage licenses, which later resulted in several counties joining voluntarily, others being ordered by lower courts to join in, and a whole bunch of county clerks — both pro- and anti-marriage equality — desperate to know what the law should actually be.

Although it was only a handful of counties, nearly 70% of New Mexico residents lived in a ‘marriage equality county’ — but lacked still lacked state recognition. We were in legal limbo.

Today’s unanimous NM Supreme Court ruling was unequivocal: LGBTs deserve equal protection under the law.

I’ve been reading through the ruling, and so much of it just jumps out at me as incredibly powerful language. This is a ruling that slams the homophobes and bigots again and again, and demolishes every one of their legal arguments. I’ll try to step through some of it here, based on the full text of the ruling. An easy-to-read version is also available on Casetext here.

It’s a very long post, so I’ve tried to break it up, yet remain somewhat chronological in the ruling text itself.

“All persons are born equally free”

That’s the thunderous opening of the unanimous opinion, written by Justice Edward Chavez:

All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.” N.M. Const. art. II, § 4.

These inherent rights, enjoyed by all New Mexicans, appear along with twenty-three other provisions known as the New Mexico Bill of Rights, which include the right to bear arms, freedom of speech, freedom of the press, freedom from unreasonable government searches and seizures, due process, and the equal protection of the laws. See N.M. Const. art. II, §§ 6, 10, 17, 18. When government is alleged to have threatened any of these rights, it is the responsibility of the courts to interpret and apply the protections of the Constitution.

Wonder if Loving v. Virginia, the SCOTUS case that ended interracial marriage bans in 1967 makes an appearance? It’s the second item cited, and Chavez directly connects gay marriage bans to the case.

Interracial marriages were once prohibited by laws in many states until the United States Supreme Court declared such laws unconstitutional and ordered an end to the discriminatory treatment. Loving v. Virginia, 388 U.S. 1, 12 (1967)(…) Consistent with our constitutional responsibility to determine whether legislation offends the New Mexico Constitution, the question we must answer is whether the State of New Mexico may decline to recognize civil marriages between same-gender couples and therefore deprive them of the rights, protections, and responsibilities available to opposite-gender married couples without violating the New Mexico Constitution.

As for the religious argument against legalizing gay marriage, Chavez dismisses it out of hand.

Although this question arouses sincerely-felt religious beliefs both in favor of and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution.

‘Intermediate scrutiny’

This has often been a sticking point in LGBT rights, the issue of what level of judicial scrutiny is applied when there are allegations of discrimination.

Historically for LGBT rights, the courts have been reluctant to apply “strict scrutiny” — which means the government has to prove there is a compelling reason for them to have a given law that results in discrimination against a minority. Mostly LGBTs get “rational basis,” which means “Did the government (esp. the legislature that enacted a given law) have a reason they felt was rational for passing the law?”

For example, SCOTUS and other courts kept applying rational basis in Don’t Ask, Don’t Tell cases, with the Defense Department permitted to assert, without any particular proof needed, that “morale and good order” would be at risk if gays and lesbians were allowed to serve openly.

On the other hand, one of the top reasons DOMA’s Section 3 was overturned was because there were U.S. Representatives and Senators on record as stating the reason they wanted to ban gays from marrying was because they felt gays were a moral abomination. That’s not a “rational” assertion — it’s a moral, religious judgment, and as such provides evidence that a law was motivated by animus and not for reasons such as ‘protecting families’ or ‘encouraging responsible procreation.’

Some more excerpts from the Summary:

Because same-gender couples (whether lesbian, gay, bisexual, or transgender, hereinafter “LGBT”) are a discrete group which has been subjected to a history of discrimination and violence, and which has inadequate political power to protect itself from such treatment, the classification at issue must withstand intermediate scrutiny to be constitutional. Accordingly, New Mexico may neither constitutionally deny same-gender couples the right to marry nor deprive them of the rights, protections, and responsibilities of marriage laws, unless the proponents of the legislation—the opponents of same-gender marriage—prove that the discrimination caused by the legislation is “substantially related to an important government interest.”

Substantially related and important government interest are key.

And yes, that ridiculous “marriage is for breeders only” argument is buried once and for all, not just once, but several times in the ruling:

The opponents of same-gender marriage assert that defining marriage to prohibit same-gender marriages is related to the important, overriding governmental interests of “responsible procreation and childrearing” and preventing the deinstitutionalization of marriage. However, the purported governmental interest of “responsible procreation and childrearing” is not reflected in the history of the development of New Mexico’s marriage laws. Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying. In addition, New Mexico law recognizes the right of same-gender couples to raise children.

The conclusion is obvious, based on these rationales:

(B)arring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

Now let’s take a walk through the tall grass of this ruling…

You can stop here if you like and will probably know all you need or care to know. But me, I’m never satisfied. So I’m going to head on into the ruling itself and look at the arguments and rationales.

As folks may remember, I’ve mentioned several times that New Mexico’s general marriage law is unaccountably gender-neutral. Plus there’s a state law requirement governing the required recognition of any marriage performed in any other jurisdiction — in America or internationally — subject to certain exclusions. These exclusions include incestuous or polygamous marriages, for example. They don’t list same sex marriages as an excluded type.

Interestingly, the unanimous opinion as written by Justice Chavez goes out of its way to point out the many other places in New Mexico law where marriage is defined as one male and one female — one example cites NM’s divorce laws, another cites the marriage application form — thereby creating the de facto ban on gay marriage.

Also, rightly so, the ruling acknowledges it was never the intent of the state legislature, through the occasional use of gender neutral language, to enact legalized same sex marriage.

Yet, the reason the ruling does this is so that rather than leave those gender-specific statutes in place and open to question, they too can be judged as a whole as to whether they pass Constitutional muster.

An important reason for this is because failure to deal with these questions could result either in more litigation, or possibly a state government opinion that although gays and lesbians have the right to marry in New Mexico, the state can otherwise still have and pass new laws intended to discriminate against them. Or simply withhold meaningful recognition altogether.

DOMA’s Overturning is the ‘One Ring to Rule Them All’

Citing the DOMA case before the Supreme Court, United States v Windsor, which resulted in Section 3 (the Federal ban on recognition) being over turned, the NM Supreme Court ruling goes on to say:

Even if we were to conclude that the gender-neutral language in Sections 40-1-1 and 40-1-10 authorizes same-gender marriages, we could not avoid the constitutional challenge raised by Plaintiffs. Plaintiffs “seek vindication not only of their constitutional right to marry, but their entitlement to all the essential protections and responsibilities attendant on marriage.” Interpreting our statutes to authorize committed same-gender couples to enter into civil marriage will grant them the rights and privileges available to opposite-gender married couples in approximately one thousand statutes and federal regulations that refer to a person’s marital status, thereby avoiding a constitutional challenge on that basis.

Procreation never was the purpose of marriage laws

The latest quasi non-religious “attempting to sound reasonable” legal argument promoted by the anti-equality lobby is because the state (or federal government) has an interest in promoting breeding, but only by married opposite-sex couples to exclusion of any other family situation or arrangement.

And yes, this is the bigots saying it should be the official government position that the naturally-born children of heterosexual parents are inherently superior to those conceived by other means, step-children, children of single parents, and of course children of gay and lesbian parents.

Fertility has never been a condition of marriage, nor has infertility ever been a specific ground for divorce. Beginning in 1884, a divorce could only be granted on specific grounds, which at the time only included “adultery, cruel or inhuman treatment and abandonment.”
Even assuming arguendo that procreation is the overriding purpose of the New Mexico marriage laws, same-gender and opposite-gender couples are still similarly situated, yet they are treated differently. Opposite-gender couples who are incapable of naturally producing children, or who simply do not intend to have children, are not prohibited from marrying, and they still benefit from concomitant marital rights, protections, and responsibilities.

And besides which, gay and lesbian families can and do have children, too:

In addition, just as opposite-gender couples may adopt or have children utilizing assisted reproduction, so too may same-gender couples. However, opposite-gender couples who adopt or have children utilizing assisted reproduction are not prohibited from marrying, and they and their families benefit from state-granted marital rights, protections, and responsibilities. Same-gender couples are prohibited from marrying, and they and their families are deprived of the rights, protections, and responsibilities available under our marriage laws, even if they choose to have a family by adoption or assisted reproduction.

In case THAT wasn’t clear enough:

Procreation is not the overriding purpose of the New Mexico marriage laws. 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.

More about that “intermediate scrutiny…”

The ruling then goes into a longish section explaining why the justices went with ‘intermediate scrutiny’ on this case rather than ‘strict.’ It has to do with the fact that the NM Constitution has a protection from discrimination based on gender, it doesn’t have one specifically with respect to sexual orientation.

This is where it gets a little complicated. Rather than including lots of complicated jargon and quotes, suffice to say the rationale is that while LGBTs are a discrete minority group that has historically suffered from discrimination, New Mexico lacks the legal framework and state Constitutional requirement to absolutely outlaw anti-gay discrimination under strict scrutiny requirements.

A little success does not equal no longer a suspect class or protected minority

With respect to the argument some of the homophobes have been floating, that because LGBTs are beginning to see success in securing rights, that means we have political power and therefore can no longer be considered a “suspect class,” the ruling has this to say:

Focusing on the political powerlessness prong is a reasonable strategy for the opponents of same-gender marriage because whether same-gender couples (the LGBT community) are a discrete group who have been subjected to a history of purposeful unequal treatment is not fairly debatable.
Refocusing on the contention that the LGBT community is not politically powerless, we recognize that they have had some recent political success regarding legislation prohibiting discrimination against them. However, we also conclude that effective advocacy for the LGBT community is seriously hindered by their continuing need to overcome the already deep-rooted prejudice against their integration into society, which warrants our application of intermediate scrutiny in this case.

A history of discrimination and the matter of ‘lifestyle choice’

Again, these also form the basis of whether a finding of “intermediate scrutiny” is warranted: Has there been a history of discrimination against LGBTs and is sexual orientation an inherent characteristic of a person, not subject to choice?

To complete the analysis of whether intermediate scrutiny should apply, we must answer whether members of the LGBT community have been subjected to a history of discrimination and political powerlessness based on a characteristic that is relatively beyond their control.

The court answers that question in the affirmative, LGBTs have experienced a history of discrimination and political powerlessness.

One thing I find interesting is the ruling says it doesn’t actually matter if a characteristic can be changed, because religion is protected, and that absolutely is a matter of choice. However, the point is raised:

Instead, the question is whether the characteristic is so integral to the individual’s identity that, even if he or she could change it, would it be inappropriate to require him or her to do so in order to avoid discrimination? We agree with those jurisdictions which have answered this question affirmatively regarding LGBTs.

Essentially, the ruling says that even if sexual orientation could be changed or chosen, it shouldn’t matter. It does go on though to say that still another reason for not finding for strict scrutiny is that while marriage itself is considered an important civil right, the question as to whether civil marriage itself is a fundamental right has not been addressed at any level in state or Federal courts.

I take this in part to mean exactly what it seems, but also in the sense of avoiding the whole slippery slope rationale. As in, “Well if gays can get married, then it’s a fundamental right for a man to marry his box turtle.” (Thanks, Rick Santorum!) The government does have an interest in prohibiting certain types of marriages — such as the laws establishing an age of consent. Or stating that the people involved must both be human adults.

What this leaves is the finding for “intermediate scrutiny” — in that gay and lesbian couples are in a situation substantially similar to that of straight couples. Committed monogamous relationship, intertwined financial and legal obligations, an interest in having shared civil rights as a couple, and sometimes the raising of children in families. Under the requirements of intermediate scrutiny, the government must prove it has at least an important reason to deny marriage rights (or any other established civil right) to an identified suspect class. (Strict scrutiny would require that reason to be judged compelling and unavoidable.)

Debunking the bigotry and homophobia

This is where the argument against same sex marriage and marriage equality rights always falls flat on its face. Unless one is lying and using debunked pseudoscience, such as with the Regnerus and Marks studies, there is zero harm to children being raised by gay and lesbian parents. And zero harm to straight couples.

Which of course doesn’t prevent the opponents of gay marriage from attempting to use exactly these arguments:

We have interpreted the argument of the opponents of same-gender marriage as suggesting that there are three governmental interests for prohibiting same-gender couples from marrying in the State of New Mexico. First, they argue that the governmental interest in promoting responsible procreation justifies the same-gender marriage prohibition. Second, they argue that the governmental interest in responsible child-rearing justifies depriving same-gender couples who marry from the benefits and protections of marriage laws. Third, they suggest that allowing same-gender couples to marry will result in the deinstitutionalization of marriage because people will spend a smaller proportion of their adult lives in intact marriages than they have in the past.

However, this is quickly knocked down:

During oral argument, opponents admitted that they lacked evidence to show that allowing same-gender marriages would result in married couples divorcing at an increased rate. Because this contention is not supported by the evidence in the record, the contention is without merit.
Regarding responsible procreation, we fail to see how forbidding same-gender marriages will result in the marriages of more opposite-gender couples for the purpose of procreating, or how authorizing same-gender marriages will result in the marriages of fewer opposite-gender couples for the purpose of procreating.

Booyah! In fact, the ruling goes out of its way to point out that childless same-sex couples have to go through far more trouble and expense to have children through medically-assisted reproduction or adoption — thereby being the very definition of “responsible.”

More on the positive benefits of marriage for same-sex couples, and the sheer illogic of suggesting that depriving marriage rights to gay and lesbian couples will result in “more responsible” child-rearing by hetero couples:

We fail to see how depriving committed same-gender couples, who want to marry and raise families, of federal and state marital benefits and protections will result in responsible child-rearing by heterosexual married couples. In the final analysis, childrearing for same-gender couples is made more difficult by denying them the status of being married and depriving them of the rights, protections, and responsibilities that come with civil marriage.

In closing

The ruling closes with this:

Having declared the New Mexico marriage laws unconstitutional, we now determine the appropriate remedy. We decline to strike down our marriage laws because doing so would be wholly inconsistent with the historical legislative commitment to fostering stable families through these marriage laws.

Again, this bit is important because striking down all the marriage laws would not only leave a legal mess, it would invite years and decades of political can-kicking and mischief. I also see a subtle slam against those who try to claim that gay marriage bans are for the good of ‘stable families.’

You want stable families and assert marriage is supposed to promote that? Then extend civil marriage rights to the gay and lesbian couples and their families, which already exist, but until this ruling did not have the legal protections of marriage.

Instead, “civil marriage” shall be construed to mean the voluntary union of two persons to the exclusion of all others. In addition, all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples. Therefore, whether they are contained in NMSA 1978, Chapter 40 or any other New Mexico statutes, rules, regulations or the common law, whenever reference is made to marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower or any other word, which, in context, denotes a marital relationship, the same shall apply to same-gender couples who
choose to marry.

And that, my friends, is the top-to-bottom housecleaning of New Mexico’s entire body of “statutes, rules, regulations (and) the common law” — to ensure that effective immediately, there are no loopholes or inconsistencies or areas lacking clarity in established state laws and jurisprudence.

The last few paragraphs establish a court order that all laws touching upon marriage, including the licenses, shall from now on be gender-neutral. And further order all New Mexico courts to uphold compliance with these orders.


NM Doña Ana County Clerk, Lynn Ellins (

NM Doña Ana County Clerk, Lynn Ellins (

Interviewing Lynn Ellins, the county clerk who started all this::

Lynn Ellins, the county clerk who started the movement, told KOB he expected the New Mexico Supreme Court to come down with the ruling and that he was happy with the outcome.

Obviously when I said the constitution required me to do this I was correct and the court has backed me up on that and other county clerks as well,” Ellins said.

NM Senator Sharer apparently handles snakes, too, in his spare time. Why? Apparently to see if anyone can tell them apart.

NM Senator Sharer apparently handles snakes, too, in his spare time. Why? Apparently to see if anyone can tell them apart.

Meanwhile, State Senator, amateur snake-handler and history de-gayer, Bill Sharer (R-Farmington) remains desperate to re-discriminate Teh Gays:

Republican state senator Bill Sharer, of Farmington, is already working on a constitutional amendment to overturn the court’s decision. Such an amendment would require a majority of legislators. Then, voters would get to decide whether or not to change the constitution.

Fortunately, that amendment has about as much chance of passing the NM state legislature as a marriage equality bill did for the last ten years. I feel certain a great many New Mexico legislators are breathing a huge sigh of relief that the decision was taken out of their hands, so that none of them has to be on record.

Plus, with the Democratic-majority state House and Senate, there’s essentially zero chance of a state constitutional amendment like this passing in the first place.

New Mexico’s Republican Governor Susana Martinez responded thus:

“My family (believes) marriage is between a man and a woman, and I’ve said that all along,” said Gov. Susana Martinez, in response to the ruling. (…) I’m confident that most New Mexicans believe, like I do, that it should have been settled by a vote of the people. Instead, the Supreme Court stepped in and rendered their decision.”

Um, yeah, because letting the general population of those who bother to turn out to vote has been a terrific way of ensuring civil rights and equal protection under the law for historically oppressed minorities. Riiiiiight.

In fact, Justice Chavez and the unanimous ruling of the New Mexico Supreme Court had something to say about that, too:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Damn right.

Published professional writer and poet, Becca had a three decade career in technical writing and consulting before selling off most of her possessions in 2006 to go live at an ashram in India for 3 years. She loves literature (especially science fiction), technology and science, progressive politics, cool electronic gadgets, and perfecting Hatch green chile recipes. Fortunately for this last, Becca and her wife currently live in New Mexico. @BeccaMorn

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94 Responses to “In-depth look at how New Mexico won gay marriage”

  1. Badgerite says:

    There are no fundamental rights that are absolute. Strict scrutiny requires that the government show a compelling state interest that justifies infringement and that that infringement is the least intrusive possible while still achieving the compelling governmental purpose.
    4th Amendment rights are fundamental but national security is per se a compelling state interest and therefore can be infringed on by the state if there is no less intrusive way to achieve the ends of protecting the country. And the 4th Amendment has its own qualifier in the sense that it prohibits only UNREASONABLE searches and the SCOTUS, from forever, has defined all searches as per se reasonable where there is no real public expectation of privacy in the information gathered.
    How this applies to the NSA cases:

    The Foreign Intelligence Surveillance Amendments Act of 2008 is constitutional in that it seeks to secure the safety of the country from foreign terrorism which is clearly a compelling state interest. It allows for the inadvertent collection of American digital communications when necessary to achieve the collection of foreign communications so long as certain procedures are followed that minimize the intrusion. And this is a necessary intrusion due to the technical difficulties of separating out foreign and domestic communications in the digital age. So the intrusion is constitutionally allowed so long as it is the least intrusive necessary to achieve the compelling state interest. To the end of making the infringement the least intrusive the law requires making the communications initially anonymous (no names please, no identifiers) and procedures which click in requiring the analyst to stop and seek an individualized warrant based on probable cause when the NSA analyst becomes aware that it is the communication of an American citizen that he has before him. At that point, he can go no further without violating the law unless he gets an old fashioned individualized warrant. It also requires a system of auditing to enforce this restriction. Also, the NSA programs must be monitored and signed off on by the AG and a warrant secured from the Foreign Intelligence Surveillance Court to insure that the programs are operating under appropriate oversight. And at one point in 2011 a FISC judge did indeed stop an NSA program because it had exceeded what the warrant said they could inadvertently collect and therefore became an unconstitutional intrusion into American digital communications.

    Shorter version: The NSA can scoop up American digital communications where it is technically necessary to scooping up foreign digital communications, The the communications must be anonymized ( no names please and no identifiers ) until the NSA analyst is aware that he may be perusing the communications of an American citizen as opposed to clearly foreign communications. . If that occurs that NSA analyst must immediately stop and secure an individualized warrant from a court of law stating probable cause to go any further.

    That is one aspect of the NSA debate. Totally different issue is the bulk collection of telephony metadata of virtually all Americans who make phone calls. This information involves the collection of a record of all the numbers that were called from and received by any given number and the times of those calls. The NSA wants this in order to track the activity of an possible terrorist cell operating in the country and to uncover its unknown connections. I believe that is the rationale.
    The thing about this kind of information ( referred to variously as phone pen registers, phone records, metadata collection – all referring to the same thing basically – which is a record of who was called from and who called to any given phone number and at what time it occurred ) is that the SCOTUS has held in a 1979 case known as Smith v Maryland that such information ( information given to and in the possession of a third party which in this case is the phone company ) has no real expectation of privacy for the public. Therefore, any search of such information is considered reasonable. By giving this information to a third party, you are aware that the information is not private and therefore assume any risk that the government may at some point look at that information for legitimate law enforcement purposes. But that case involved the governmental use of one person’s pen register who was under investigation for making harassing phone calls. The question currently before the courts is whether this rule can be extended to all phone records ( what numbers called what numbers and when) of all American citizens ( bulk collection of telephony metadata ). The information about the existence of this metadata collection was made public by the New York Times in 2005. An Verizon technician didn’t like what he was being asked to do and leaked it to the paper. Lawsuits were pursued in 2006 but were dismissed because the government alleged that the plaintiffs could not prove their metadata had been collected. No case, no controversy clause of the Constitution prohibits the SCOTUS from gratuitously ruling from the bench as to Constitutional interpretation without an actual case or controversy before it.
    The plaintiff must show that they were personally harmed. The cases were dismissed on that basis. Enter Edward Snowden. The information he provided was that the program of metadata collection was not just some American phone records, but all American phone records.
    The cases were revived and we now have 2 Federal District Court rulings on this issue that disagree as to the program’s constitutionality. Federal District Courts are the first level of review. Their decisions can be appealed to the Federal Courts of Appeal ( again, broken up into geographic regions) and their decisions can be appealed to the SCOTUS,
    When there is disagreement in the lower level federal courts you have two
    competing interpretations of the Constitution until or unless it is resolved by the SCOTUS.

    The language in Smith v Maryland held that the information contained in phone records ( metadata) since given to a third party, is completely outside the reach of the 4th Amendment ( no reasonable expectation of privacy). No warrant required and no probable cause to peruse.
    Judge Leon ( D.C. Federal District Court) distinguished Smith from the case brought by Mr. Klayman as applying to an investigation involving a single individual and of a limited time frame. The metadata collections of the NSA affect everyone and are of an unlimited duration. The information is discarded after 5 years but is replaced with new information without limit. He also distinguished Smith from the case before him in that in the digital age the collection of the metadata information also carried with it the collection of all the personal information that was contained in those digital files ( music, photos, emails, etc) and this information could be illegally accessed in secret by any NSA analyst with a grudge or an agenda.
    Judge Pauley, (Federal District Court, N.Y.) held, in a case brought by the ACLU, that the ruling of the Smith Case did control. That the information collected was merely phone records. He found no evidence of NSA abuse or accessing of any personal information in the digital records and that a potential for abuse exists for any number of government programs that gather information of American citizens including the IRS, Medicare and Medicaid. And those programs are not unconstitutional merely because of the possibility of individual abuse of position. That the phone records are anonymized ( no names, no identifiers) and that if any suspicious connections are found that NSA analyst ( and there are only 22 in this program) must refer the number to the FBI who then must acquire an individualized warrant to investigate any further.

    At this point there are two contradictory interpretations of the 4th Amendment that will have to eventually be resolved by the Supreme Court of the United States.

    As to your dissing of lawyers, GW Bush was once quoted as saying, “Dictatorship would be easier”. And that attitude ( a lack of regard for law and the things that law protects) was reflected in what occurred during his administration, which was the trashing of international treaty requirements against torture, Guantanamo ( which was established expressing to detain people outside of the jurisdiction of the United States court system) and surveillance by the NSA conducted without any oversight and only on the say so of the POTUS.

    I don’t think we want to go there.

  2. Nathanael says:

    Maybe those of us in New York (where the Supreme Court is the main trial court, and the top court is the Court of Appeals) figured that out quicker than people in states with more normal naming for their courts….

  3. Nathanael says:

    4th Amendment rights are fundamental (according to precedent), but nobody seems to be applying strict scrutiny to them in the NSA cases.

    I think the courts make up these classifications and twist them to serve their own ends. The NM Supreme Court ruling is excellent, but not because of the fancy legal phraseology used, but because it gets down to brass tacks and uses plain language to point out what the state constitution says – a Constitution which was written to be read by ordinary people, not by lawyers.

  4. Nathanael says:

    Martinez: “I’m confident that most New Mexicans believe, like I do, that it should have been settled by a vote of the people.”

    This is actually completely disingenuous, and probably an outright lie, on the part of Martinez. I’m sure when she actually looks at the polling (majority of New Mexicans support same-sex marriage) she’ll suddenly change her mind…

  5. Badgerite says:

    If it was a fundamental right involved, the court would have had to have used a higher standard than the rational relationship to a legitimate government purpose. The standard involved for the abridgment of a fundamental right is, indeed, strict scrutiny. Strict scrutiny requires the government to show a compelling state interest that the legislation in question addresses. And that legislation then must be the least intrusive legislation necessary to achieve that government purpose. The test used, which was rational relation to a legitimate government purpose ( not compelling state interest) , belies the language. The fundamental right violated is equal protection. The 14th Amendment.

  6. So amazed that the State of New Mexico may decline to recognize civil marriages between same-gender couples and therefore deprive them of the rights.

  7. rmthunter says:

    The Court doesn’t seem to have used the phrase “fundamental right” as such, but there are any number of citations in the Utah opinion that permit of no other reading. (Although in Zablocki, the Court did state specifically that was “reaffirming the fundamental character of the right to marry.” That doesn’t strike me as real ambiguous.)

    And it wasn’t you not doing your homework that I was referring to, it was the NM Supreme Court — if Judge Shelby (or, more likely, his clerk) can find those cases, I would think the NM Supreme Court would be able to..

    After all, we all know you can do anything. ;)

  8. Badgerite says:

    The District Court case in Utah states the following in the second paragraph of it’s ruling:

    “Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantee of equal protection and due process under the law. The state’s current laws deny it’s gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no RATIONAL REASON. Accordingly, the court finds that these laws are unconstitutional.”

    The standard the court is using is a rational relationship to a legitimate government purpose.
    That is, as Becca stated, an intermediate scrutiny test.
    Since the State of Utah cannot show that their laws meet that standard ( their is no rational connection between their stated purpose and the law) , and the law discriminates against similarly situated people ( people wanting to get married both gay and straight) for no rational reason, the fundamental right which is violated is equal protection of the laws. (14th Amendment). Equal protection can be applied to any law which discriminates against a grouping of people for no rational reason, so long as that group of people are ‘similarly situated’ with respect to the everyone else who are not discriminated against.
    Utah recognizes the right to marry. It just doesn’t recognize the right of a gay person to marry. They have no rational basis for this discrimination. It furthers no legitimate government purpose. ( see Becca’s run down on this)
    Therefore, it violates a gay person’s fundamental right to equal protection under the law.

  9. Badgerite says:

    Unanimous ruling! Booyah, indeed.
    Really good post. The court system at its best. I love it when that happens.

  10. Naja pallida says:

    Don’t give them any ideas.

  11. BeccaM says:

    Sorry, but I don’t agree. The jurisprudence sides heavily on the side of finding that marriage is an important civil right, but has consistently stopped short of declaring that it is a ‘fundamental right’. If you read the section you cited, it mentions how marriage was noted as a matter of ‘fundamental importance,’ cases have stopped short of declaring marriage itself as a fundamental right. Those are two very different things in the eyes of the law.

    In fact, in the SCOTUS DOMA overturn, the lack of finding as such was how and why the rest of the law was allowed to remain standing. As it is, Judge Shelby’s ruling stood primarily on Equal Protection, and not on marriage itself as a fundamental right.

    I would also remind you that I wrote my analysis before the Utah case came down. Sorry, but I can’t ‘do my homework’ as a time-traveler. My TARDIS is in the shop.

  12. rmthunter says:

    Oh, yeah — I’d forgotten about that little fiasco.

    OK — time to make a bowl of popcorn. . . .

  13. BeccaM says:

    We should never underestimate the ignorant stubbornness of anti-gay bigotry.

    At this point, having done some research into Sharer’s rather feckless political career, I’m not sure what Sharer himself thinks is possible versus what he may be doing just to grandstand among the GOPers. Y’know — the up-and-coming bully who beats up some other kid just to gain cred with the other bullies.

    Personally though, I’m of the opinion that Sharer’s proposed amendment won’t even make it to a vote, given his history of getting absolutely nothing done in the NM legislature. Back when NM counties were first starting their marriage equality rebellion, his “dozens” of legislators who were going to file a challenge and ask for an injunction turned out to be just him and a couple others. And even that was so inept and late, all it did was to try to make Doña Ana’s county clerk stop issuing licenses, with nothing in there at all about the other counties.

  14. fletcher says:

    Those spammers deserve a good swift kick in the ‘bots. The “get rich working at home” scams must pay good because I’d think they could earn more programming the ‘bots to win on online poker sites. Maybe its because those poker sites based in the Caribbean or Gibraltar take from credit cards when you lose but don’t replenish when you win.

  15. rmthunter says:

    If I’m not mistaken, Mississippi finally got around to repealing its miscegenation law earlier this year, although it might have been Louisiana. (Alabama actually repealed its miscegenation law in 2000.) It’s hard to research, because most articles take the date of the Loving decision as the date of repeal of the laws, although, like sodomy laws, the actual statutes often remained on the books.

  16. rmthunter says:

    At this point, a state constitutional amendment to restrict marriage to opposite-sex couples is a complete waste of time. Does Sharer actually think that a) such an amendment will pass, and b) that even if by some fluke it does, it will survive a challenge in federal court?

  17. rmthunter says:

    I giggle every time I think about how many times Judge Shelby cited Scalia’s dissents as support for his decision.

  18. rmthunter says:

    I somehow doubt that the timing on that decision had anything random about it. This man seems to know exactly what he’s doing — and he’s told the state that it will most likely take “a few days” for him to consider the state’s request for a stay.

  19. rmthunter says:

    Still reading through — this is an excellent summary, by the way — and this jumped out at me:

    “. . . while marriage itself is considered an important civil right, the
    question as to whether civil marriage itself is a fundamental right has
    not been addressed at any level in state or Federal courts.”

    Strangely enough, the Utah decision devoted a whole section to review of those Supreme Court cases that have established marriage as a fundamental right. (Page 18, “A. Supreme Court Cases Protecting Marriage as a Fundamental Right.”

    Someone didn’t do their homework.

  20. The_Fixer says:

    I don’t think that a lack of permit would stop them from procreating. It seems to be so easy for straight people. Even accidental, sometimes.

  21. Michael says:

    Agreed! And with the right wings constant harping about “procreation”, they should just stop issuing marriage licenses and start issuing breeding permits! lmao. :)

  22. Michael says:

    Great news! And now Utah! Utah??? UTAH!!!!! Although I suspect a stay will eventually be issued, the genie is already out of the lamp so to speak with marriages already being performed! And Judge Shelby was emphatic in his ruling, there is a good chance he will NOT issue a stay. States are falling like dominoes. This is the “canary in the coal mine” that should be telling the anti-marriage equality crowd that they have lost once and for all.

  23. emjayay says:

    16 states had anti-interracial marriage laws of various sorts in 1967

  24. Daddy Bear says:

    Isn’t that countdown (of states that DON’T deny equal rights) going the other way?

  25. johnbales says:

    I’m thinking too that the state government was caught off guard. From what I read, Justice Chavez had until Jan 7 to hand down his decision. I suspect that most in the state government expected him to wait until after the new year. I guess the Justice decided he’d heard enough and was ready to render his decision. It was interesting that he decided to do it on a Friday afternoon preceding the Christmas-New Years holiday season when many people are on vacation and it will be harder/take longer to try to stay the action and appeal the decision.

  26. johnbales says:

    Who would have thought that your Utah wish would come true the next day! We’re living interesting days in the history of the USA.

  27. BeccaM says:

    My pleasure.

  28. The_Fixer says:

    Great analysis/explanation, Becca. Gives me some hope for this trend continuing.

    What’s really great is that the court embraced many, if not all, of the arguments that the LGBT community has made over the years. I was particularly struck with the ruling that there is no state requirement for married couples to reproduce. The opposing argument that the state has an interest in promoting marriage as a vehicle to raise children has always been obviously ridiculous, we all know that. Nice to see it acknowledged by the court.

    The various technicalities of the ruling were very interesting. This case will be cited in other cases in the future, I am sure. Brick-by-brick we’re building a 50-brick wall.

    Thanks for the article!

  29. BeccaM says:

    I know — I had to do some research into their court system for that previous post. I use the word ‘oddity’ because people here in the States might not understand that this isn’t like the U.S. Supreme Court where there’s just the one court, and so a re-hearing is nearly pointless to ask for. Division Bench decisions are often appealed to a Constitutional Bench in serious matters — and I’d say the potential recriminalization of homosexuality rises to that level of urgency.

  30. BeccaM says:

    Thank you — and I did. My thoughts and prayers are with you. *hugs*

  31. BeccaM says:

    Possibly, but our recent litigation has been limited exclusively to the NM state courts. None of our top cases made it into the 10th Circuit.

    But I think you’re right, and Scalia himself (cited in the Utah judge’s ruling) said that overturning DOMA’s section 3 did open the floodgates. Now we have people going to state and federal courts saying, “There are 1100+ federal rights and privileges my family is being denied, just because this state, unlike 33 (32, 31…) others denies marriage equality rights.

  32. Moderator4 says:

    Yes, thank you. Marked as spam.

  33. pappyvet says:

    Doña Ana…I must admit to some fondness for that name and it’s association to our cause .

  34. jamesnimmo says:

    Thanks SO much Becca for this blue print of the New Mexico decision. I’m proud to say that some of the principles you quoted have been used by me in discussions in other forums. With no legal education I’m so pleased that I was on the same track as seasoned lawyers. Vindication is a wonderful feeling!

  35. pappyvet says:

    Hosana in the highest ! [somewhat tongue in cheek] Hey Sis ,check your site !

  36. MyrddinWilt says:

    He can request a stay, but as the rulings mount up, they are less likely to be granted.

    Oddly enough, the Defense of Marriage Act may be what brought the whole house of cards down. The haters were the ones that federalized the issue by introducing DOMA. Without a federal law the scope of any SCOTUS ruling would have been limited to particular sets of facts in particular state laws. Now there is a federal ruling that gives the district courts a lot of support for overruling state laws and constitutions.

    Last year a stay of would have followed automatically at the district court level. But not any more and I don’t think it will be automatic at the appellate level either. Utah is in the same circuit as New Mexico, the 10th. So there is circuit precedent building up here as well.

    Could be that Utah and New Mexico end up bringing Colorado, Wyoming, Kansas and Oaklahoma with them.

  37. Dakotahgeo says:

    Well, THAT certainly doesn’t take much effort. That whole family gives strong support for abortion, which I normally am against. I figure I’ll tell women what to do with their bodies only when I get pregnant. That ought to shut me up on that subject.

  38. MyrddinWilt says:

    Its really not very odd. The role of the supreme court was designed to be essentially the same as the House of Lords, that is the highest appeals court.

    The US Supreme Court only hears constitutional cases and those between the states. The Indian Supreme Court hears a wider range of cases.

  39. Dakotahgeo says:

    And it never quits… been on the ‘net for a year at least, all over the place. They get paid by the comment, I believe.

  40. BeccaM says:

    Thank you, Darth

  41. DarthEVaderCheney says:

    BeccaM!!! Happy Holidays to you!!! I’d wish you a Merry Christmas and a Happy New Year 2014 but I’m too lazy, lolol.

  42. DarthEVaderCheney says:

    Let the bums appeal. If they use, as a guideline, the New Mexico legal precedent and review, the Utah legislature doesn’t have a chance. UT better get used to the fact, as with other recalcitrant States, that Marriage Equality is here to stay!

  43. DarthEVaderCheney says:

    BeccaM… thanks, tremendous thanks for a fantastic breakdown of the Court’s rulings so even I can understand it, lolol. I am sooooooo happy for New Mexico AND the country! Would it not be a slap in the tush for Utah to be the 18th State?? Oooooo, the pain!!! Again, Happy Holidays and tyhanks for ALL of your work! Dak!

  44. BeccaM says:

    Yep. Never underestimate the sheer power of ignorance, stubbornness, and bigotry.

  45. BeccaM says:

    Joe My God is on the case, and he seems to have multiple reports now that the Utah state gov’t will seek a stay and appeal.

  46. nicho says:

    I don’t think it was the show that made them look stupid.

  47. nicho says:

    Georgia just outlawed slavery a few months ago.

  48. Thom Allen says:

    Yes, but I hope they don’t pull a Mississippi and wait for 150 years . . .

  49. FLL says:


  50. Thom Allen says:

    Nah, not a race. But we could make it a pool. Pick the order in which those states will approve gay marriage from next to last. $20 bucks per person to play. ;^)

  51. FLL says:

    Only exciting, scintillating people just go away… and usually wind up at parties in Barcelona and Berlin with lampshades on their heads. U.S. Supreme Court justices, being much less vivacious, never just go away. The conservative states are doomed to accept marriage equality.

  52. FLL says:

    Yesterday, I mentioned eight more states after New Mexico to reach a total of 25 states. Now there are only seven left: Oregon, Nevada, Colorado, Michigan, Ohio, Pennsylvania and Virginia. Do you get the feeling that this is some sort of race?

  53. Thom Allen says:

    I agree. I think we’ll get another 6-8 states and the rest will try to wait it out, hoping that it will just go away.

  54. Thom Allen says:

    Having the government of Utah thwarted is almost as good as having same-sex marriage allowed. I’ll bet there are thousands of Republican and Mormon heads exploding in Utah and all over the country.

  55. FLL says:

    The dominoes will fall quickly over the next year or so, I think, until about half the states have marriage equality. The rest, including such gems as states of the Deep South, will wait for the U.S. Supreme Court to weigh in… and I’m sure the U.S. Supreme Court will.

  56. Mike_in_the_Tundra says:

    I just read that they are not only wed, but the D.A., who tried to stop the marriage, was thwarted.

  57. BeccaM says:

    A Constitutional Bench would likely not include any justices who served on the Division Bench anyway.

  58. Thom Allen says:

    Some of those dominoes are gonna be really huge and hard to topple: Mississippi, Alabama, Georgia, Texas, etc.

    BTW, your article is a real gem, thanks for a great job!

  59. Dave of the Jungle says:

    Having a good day.

  60. Thom Allen says:

    The article says that the SC Justice who wrote the ruing retired the next day. The government is hoping that his replacement will be more open-minded.

  61. Thom Allen says:

    Michael Ferguson and Seth Anderson, from Utah, have gotten their marriage license and report that they have been married in Salt Lake City.

  62. BeccaM says:

    Good. A two judge division bench is way the heck too small a court to decide such a serious matter, especially given there’s been four years of decriminalization of homosexuality in India.

    That’s one of the oddities about the Indian Supreme Court. A tiny Division Bench can have its ruling appealed to a Constitutional Bench (which would include 5 or more justices out of their 30 total).

  63. Thom Allen says:

    Internationally, the INDIAN GOVERNMENT itself is filing an appeal with India’s Supreme Court asking them to review their decision to reinstate their ban on gay sex. India’s Justice Minister is said that he hopes the right to personal choices will be preserved.

  64. BeccaM says:

    No worries, dear. I’m just a little tired and have a headache today and it’s made me a tad snippy. Plus there’s all this work I have to get done before I can knock off and actually enjoy the holiday break.

    Please accept my apologies.

  65. BeccaM says:

    Given this is a federal district court, I would not be at all surprised if the Utah state acting att’y general Brian Tarbet (Republican) were to file an appeal and request for a stay with the 10th Circuit.

  66. Monoceros Forth says:

    Ah. Oh dear…I’m sorry. I wasn’t trying to take a swipe at your style; I was only trying to justify the choice of style in my own comment since normally I try to write somewhat differently. I didn’t mean to offend with that unnecessary and priggish introductory paragraph of mine. I’d delete it except I fear the damage is done…not the least because it distracts from the rest of what I had to say.

  67. Monoceros Forth says:

    Let the legal definition of marriage encompass any two consenting adults…

    Bingo. That should be the rallying cry. You can’t put it any more concisely than that. Leave it up to the God-botherers to fumble for some explanation of how a contract between any two citizens somehow means “special rights” or will somehow lead to people wanting to marry animals.

  68. BeccaM says:

    I don’t have a problem with it.

  69. Ninong says:

    Utah’s gay-marriage ban was ruled unconstitutional today:

    “The judge, Robert J. Shelby of Federal District Court for the District of Utah, issued a 53-page ruling that said Utah’s law, which was passed by voters in 2004, violated the rights of gay and lesbian couples to due process and equal protection under the 14th Amendment.”

  70. BeccaM says:

    That’s pretty mind-blowing.

    OTOH, I glanced through the ruling and, from a purely selfish perspective I’m liking what I see: It could help put the kibosh on NM Sen. Sharer’s attempt to pass a state amendment to overturn yesterday’s ruling.

    And, not to mention, begin the dominoes falling in the other anti-gay states…

  71. Monoceros Forth says:

    Normally I don’t like the “fisking” approach–that is, responding to an opinion by breaking it up into small pieces interleaved with responses. I think the method is excusable here for a short response to the itemized list of objections to marriage equality given above.

    First, they argue that the governmental interest in promoting responsible procreation justifies the same-gender marriage prohibition.

    So apparently it is a duty of the state to compel its citizens to pop out children? Is there something to that effect in the New Mexican state constitution or instead in any state constitution? In any case the implication seems to be that if same-sex couples are prevented from marrying then they’ll engage in “responsible procreation” instead–because otherwise it wouldn’t be a problem, would it? I like the mental picture, by the way, of two women shrugging at each other and saying, “Welp, we tried. Guess we’ll have to find some guys to marry now and get knocked up in a responsible way. Hope to see you at a PTA meeting sometime.”

    Second, they argue that the governmental interest in responsible child-rearing justifies depriving same-gender couples who marry from the benefits and protections of marriage laws.

    I take it that this is a form of the “every child needs a mommy and a daddy” shibboleth. So far as I know the only “evidence” that has ever been produced to support this contention is the discredited Regnerus study. So really there’s not much more to say.

    Third, they suggest that allowing same-gender couples to marry will result in the deinstitutionalization of marriage because people will spend a smaller proportion of their adult lives in intact marriages than they have in the past.

    This is the most fascinating point to me because of the various weird right-wing beliefs about sex that underlie it. They’re saying that legal same-sex marriage will tend to cause couple to break up sooner. I can only see two possible mechanisms for this.

    1. “Sorry, Claire, I was going to propose to you, but then I heard that those two fairies Joseph and Alex down the block got married last week! No way I’m joining a club they’re a member of. Wedding’s off. Better break the news to your mother.”

    2. “Sorry, Claire, I was going to propose to you but then I heard they legalized gay marriage so now I can tell you that I’m running off with Bob. You know, the guy who changes my oil. Wedding’s off. Better break the news to your mother.”

    The first idea is that a same-sex couple marrying somehow devalues the whole concept of marriage, therefore making it less likely that people will marry. Again this gets into the question of whether it’s even a valid function of the state to encourage marriage. In any case, does anyone really think that way? Aren’t the Jesus freaks, i.e. the only people who even care about this issue in the first place, all getting church weddings whose sanctity is supposed to derive not from the state but from God? Should it matter to them how the state defines marriage in civil law so long as they have their own definition with with which the law does not interfere?

    Aside: I know that you at least, Becca, have regarded yourself as married in the most important and personal sense no matter what the state had to say about it. You’d think that devout evangelicals, whose faith is supposed to be so much stronger than anyone else’s, would be able to embrace the same concept but no: they demand that official pat on the head from society, which you yourself have had to live without for so long.

    The second idea is more interesting. It ties in with a notion I’ve come across before (I’ve been trying and failing to find a particular item on Digbysblog treating with this) that there is something uniquely tempting about same-sex relations, so that if they are socially acceptable then men and women will abandon their procreative duties to have wild gay and lesbian sex that’s all about selfish pleasure instead of the sober duties of married life. You see another version of this same idea in the bizarre argument that contraception is actually somehow disrespectful to women and disruptive of a loving marriage because then it’s all about pleasure-seeking.

    They try, the religious bigots. They try so hard to come up with some kind of argument that won’t get laughed out of court, which doesn’t sound like mere preaching that gay sex makes the saints weep. It’s refreshing to see a jurist who sees right through these pathetic attempts and out the other side.

  72. jinkiesshaggy says:

    New Mexico? That’s so yesterday :-) Utah is all the rage today!

  73. Thom Allen says:

    It doesn’t look like Judge Shelby stayed the order. From what I can tell, it looks like same-sex marriage can begin now in Utah! Here’s a link to the ruling:

  74. BeccaM says:

    Well…. we’ll have to see on that one. I just saw the news, too.

    A federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.

    “The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” wrote U.S. District Court Judge Robert J. Shelby. “Accordingly, the court finds that these laws are unconstitutional.”

    Personally, I think they’re jumping the gun because the story doesn’t say whether Utah intends to challenge the ruling or whether the ruling may have been stayed pending appeal.

  75. jomicur says:

    And now Utah! Two states in two days! How bloody fantastic is that?

  76. BeccaM says:

    Or ‘Alt-Prt Scn’ on PCs, and then paste into any graphics program and save the file. Even Windows Paint will do.

  77. BeccaM says:

    A few additional updates:

    Following on State Sen Bill Sharer’s statement he plans to bring a constitutional amendment up for a vote, a group called ‘Voices for Family Values’ says it plans to circulate petitions in favor of it. More also here.

    Sadly, the Navajo Nation has said they plan to keep their ban on same sex marriage, and as a sovereign Native American nation, that’s their right under state law.

    And the NM Roosevelt County Clerk and Deputy Clerk have tendered their resignations, effective immediately. They say it’s for ‘personal reasons’, but it’s presumed they resigned due to yesterday’s NM Supreme Court ruling. Rosevelt Co encompasses the southeast NM town of Portales and is roughly between Rosewell NM and Lubbock TX — and is in a rather conservative part of the state. The county commission will appoint a new clerk, who in turn will be able to pick a deputy.

    Meanwhile, last night, hundreds rallied in Nob Hill (an Albuquerque neighborhood) in celebration of the ruling.

    Truly, we mustn’t be complacent, but I also really am skeptical that NM Senator Sharer will be able to round up enough votes to pass his amendment in the legislature. The guy loves to talk big and spew his bigotry in all directions, but his successes as a state legislator have been nil for his entire career so far.

    There will be some fallout, for sure though.

  78. Indigo says:

    Yes, and when you do that, be sure to make a screen shot of the objectionable ad to send along with your comment to John. I had an amazing shoot-the-gays ad pop up about six months ago and reported it to John but by the time I went back into the site to find it and make a screen shot (Cntrl-V) it was gone.

  79. Indigo says:

    He’s right about their looking stupid but maybe he doesn’t realize the stupid isn’t in the script, it’s real.

  80. BeccaM says:

    Wish I could say I have influence over what the advertising plug-ins put on the site, but alas I don’t. You might want to drop a note to John though if you have objections to specific ones.

  81. BeccaM says:

    There’s a common attitude here in the State of Enchantment: We’re never first, but we almost always eventually do the right thing for the right reasons.

    I, too, was amazed at the sheer clarity and conciseness of the ruling. They hit every angle, covered every base. Even the parts where in the past I would’ve disagreed — strict vs intermediate scrutiny under existing law and jurisprudence, and the question whether marriage equality could be carved out of the existing NM laws due to their ambiguity — I found myself persuaded to the Justices’ conclusions.

  82. ArthurH says:

    I’ll say! Some of the ad boxes on this site (at least on my computer) are asking for signatures supporting Phil Robertson and his homophobic free screech. It is a waste of time, considering months ago Phil said he was quitting “Duck Dynasty” because it was scripted and made the family members look stupid.

  83. BeccaM says:

    Actually they seem to show up every couple of weeks. Mostly it’s ‘get rich working from home’ scams.

    Some of the smarter ‘bots quote from a comment in the thread, to try to get around the spam filters.

  84. Indigo says:

    That’s quite a piece of jurisprudence. Many states lack the kind of insightful constitution that makes a ruling like that possible but, once ruled, it establishes an important precedent that will resonate into the remaining 33 Backward States of America.

  85. Indigo says:

    The advertising trolls have discovered AmBlog.

  86. BeccaM says:

    Thank you.

  87. 2patricius2 says:

    Thanks, Becca. This is the best summary of the New Mexico ruling I have read thus far.

  88. BeccaM says:

    I’ve flagged for the mods. Just the usual comment spam.

  89. karmanot says:


  90. karmanot says:

    Yea NM! Congratulations.

  91. Franklin7777 says:

    In both this and the recent case with the photographer who refused to photograph the gay wedding, I’ve been extremely impressed with their ability to make rulings based solely on reading of law. If only that could apply to the federal SC.

  92. BeccaM says:

    The ruling was indeed a thing of beauty, which is what inspired me to write this long post.

  93. Franklin7777 says:

    I think the NM supreme court really hit it out of the park on their ruling. Their “civil marriage” decision is exactly what I think the ultimate resolution to gay marriage should be universally. Let the legal definition of marriage encompass any two consenting adults and separate the religious idea of marriage entirely.

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