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 issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.
I think this argument is extremely weak. Notice that virtually the exact same reasoning can be used to “prove” that a ban on interracial marriage does not discriminate on the basis of race. Just substitute gender for race in the relevant part of the above passage, and imagine that the plaintiffs are challenging a law banning interracial marriage:
The distinction between same-race and opposite-race couples in the challenged legislation does not result in the unequal treatment of blacks and whites. On the contrary, persons of either race are treated equally in that they are each permitted to marry only a person of the same race.
The federal Supreme Court rejected this kind of argument with respect to race in Loving v. Virginia (1967). Even if the law treats members of both races symmetrically, they are still denied the legal right to marry particular individuals solely on the basis of their race. That’s an obvious case of racial discrimination. Similarly, as I explained here, symmetry does not prevent laws banning same-sex marriage from discriminating on the basis of gender:
Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.
The two cases cannot be distinguished on the basis that laws banning interracial marriage are motivated by racial animus, whereas laws banning same-sex marriage are generally not motivated by hatred of a particular gender. Laws banning interracial marriage are unconstitutional even if not motivated by racial hostility (e.g. – if they are the result of a desire to promote valuable cultural diversity by impeding the assimilation of minority groups into the dominant culture that often occurs as a result of interracial marriage). Similarly, any laws that restrict people’s legal rights on the basis of gender are subject to heightened scrutiny even if not motivated by animus towards either men or women.
Obviously, a law could potentially be unconstitutional because it discriminate on the basis of both gender and sexual orientation. The two are not mutually exclusive categories. But I think the gender rationale is the stronger of the two arguments, for reasons I outlined here. This is particularly true in a state like New Mexico, which has an Equal Rights Amendment requiring that gender classifications be subjected to a very high level of judicial scrutiny.