On October 23, 2013, the New Mexico Supreme Court spent two hours in front of a full courtroom hearing oral arguments from petitioners that think New Mexico should embrace same-sex marriage and respondents who think that marriage should be a heterosexual affair.
The Courts did not issue a decision, and any decision they do issue is not necessarily final. Lawmakers could pass legislation or put the issue to voters as a constitutional amendment.
Some New Mexico county clerks had been issuing marriage licenses for same-sex nuptials but others refused because of ambiguities in the law. The clerks did agree, however, that there must be a definitive decision on whether it is legal to issue marriages licenses in New Mexico - so they petitioned the state's highest court to decide.
The Albuquerque Journal reported that 1400 marriage licenses were issued to same-sex couples in eight New Mexico counties in the meantime. The ACLU told NPR that momentum across the country is on the side of inclusion.
The questions to the court were whether same-sex marriage is in line with state statutes, whether a prohibition on same-sex marriage conforms to the New Mexico Constitution, and whether prohibition would be discriminatory.
James Campbell, representing Republican lawmakers who sued to stop the issue of same-sex marriage licenses, argued the New Mexico Constitution's Equal Rights Amendment, which cannot give less protection than the 14th Amendment to the U.S. Constitution, does not apply. Justices Barbara Vigil and Richard Bosson struggled to make sense of the argument.
Campbell then refuted a claim that banning same-sex marriage would violate the equal protection clause of the 14th Amendment, although conceding that the right to marry is fundamental. The Amendment, passed just three years after the Civil War, says that states cannot deny equal protection under the law to its citizens.
Justices Richard Bosson, Charles Daniels and Edward Chavez tried to get to the root of the argument, asking if same-sex marriage should be treated differently than marriage between people of different races or if the respondents thought that a liberal understanding of marriage could result in polygamy. Campbell's response, that although the state constitution bans polygamy a broader understanding of marriage could put that at risk, was unconvincing.
Justice Daniels asked whether Campbell wanted to address last summer’s U.S. Supreme Court ruling on the Defense of Marriage Act in U.S. v. Windsor, which prohibited federal language that restricts marriage to heterosexual couples.
Campbell interpreted that the U.S. Supreme Court said the states' decisions whether to recognize same-sex marriages are independent of federal recognition and that states have the ultimate power to recognize them or not.
Justice Bosson and Daniels questioned Campbell about how the state recognizes marriages performed in other states, including same-sex marriages. Couples can go to states that grant such marriages and then enjoy all of the rights and privileges that come with marriage upon their return to New Mexico. Campbell said he did not see this as a paradox, but instead said the matter has not yet been addressed by the legislature.
Justice Barbara Vigil asked Maureen Sanders, who is representing same-sex couples who were denied marriage licenses, to explain how a domestic partnership differed from a marriage – prodding Sanders to call the arrangement "a second-class marriage rather than a premier marriage."
Justice Daniels asked for clarification on federal recognition of domestic partnerships. Sanders replied a domestic partnership does not necessarily grant recognition equally among states and the federal government.
Finally, the purpose of marriage came to the forefront as Campbell said the primary reason for marriage is procreation. Justice Barbara Vigil wanted to know if there was proof that same-sex parents cause harm to children or how these families negatively affect families with opposite sex parents.
Campbell asserted that the most wholesome home for children is one with biological parents in the home. There was no citation to studies showing specific harm caused by same-sex parenting.
Justice Bosson continued with the questioning, asking about how the existence of same-sex parents caused injury to heterosexual parents. Campbell's answer was that if the state promoted both kinds of parenting equally that the injury would be to the state's interest in promoting the "biological home" of tradition.
You can listen to the entire Supreme Court hearing online.