New Mexico's history reflects a deep commitment to equal treatment under the law and the protection of individual liberty. The framers of the New Mexico Constitution created substantial and unique provisions relating to minority rights and individual autonomy that are broader in scope than the corresponding federal law. These include an Equal Protection Clause interpreted more expansively than the Fourteenth Amendment and an Inherent Rights Clause with no federal counterpart. Our state courts have consistently exercised independence and pragmatism in applying these rights guaranteed by the New Mexico Constitution.
A prohibition on marriage for same-sex couples in New Mexico is inconsistent with our constitutional text, history, and traditions. Such a prohibition discriminates on the basis of sexual orientation and is thus subject to intermediate scrutiny under the Equal Protection Clause in Article II, Section 18. It also penalizes the exercise of the natural, inherent, and inalienable right to form an intimate relationship and receives strict scrutiny under Article II, Section 4. Under both provisions, the ban is unconstitutional.
Supreme Court No. 34,306
George Bach & Max Minzner,
Brief of Amicus Curiae Professors at UNM School of Law, Griego v. Oliver, New Mexico Supreme Court No. 34,306,
Available at: http://digitalrepository.unm.edu/law_facultyscholarship/493