NM Supreme Court Dodges Scrutiny Issue in SSM Opinion

December 19th, 2013

This opinion adds to my ongoing thesis that the tiers of scrutiny no longer matter, and we should stop the charade of trying to fit laws into them. Instead, we focus on who bears the burden, and how strong that burden is.

{55} Civil marriage is considered to be a civil right. See, e.g., Loving, 388 U.S. at 12 (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”) (quoting Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). The United States Supreme Court also has described the right to marry as “of fundamental importance for all individuals” and as “part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment’s Due Process Clause.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978); see also Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”). When fundamental rights are affected by legislation, the United States Supreme Court has applied strict scrutiny when determining whether the legislation is constitutional. Clark v. Jeter, 486 U.S. 456, 461 (1988). However, regarding marriage, the United States Supreme Court does not demand “that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.” Zablocki, 434 U.S. at 386. For example, in Turner v. Safley, 482 U.S. 78, 81, 95-97 (1987), the Supreme Court rejected the lower court’s application of strict scrutiny to a prisoner’s right to marry, noting that the prisoner’s fundamental right to marry, “like many other rights, is subject to substantial restrictions as a result of incarceration.” Id. at 95. In United States v. Windsor, the Supreme Court left unanswered the level of scrutiny it was applying to same-gender marriages. ___ U.S. at ___, 133 S. Ct. at 2706 (Scalia, J., dissenting, noting that the majority “does not apply strict scrutiny, and its central propositions are taken from rational-basis cases”). We conclude from the United States Supreme Court’s equivocation in these cases that whether the right to marry is a fundamental right requiring strict scrutiny is a question that remains unanswered. We do not need to answer this question here because Plaintiffs prevail when we apply an intermediate scrutiny level of review under an equal protection analysis.