IN THE SUPREME COURT OF THE STATE OF NEW MEXICO ROSE GRIEGO and KIMBERLY KIEL; MIRIAM RAND and

ONA LARA PORTER; A.D. JOPLIN and GREG GOMEZ; THERESE COUNCILOR and TANYA STRUBLE; SARAH ADAMS and CHRISTINE HAYWARD; and ANDREW GANS AND RONNIE CHAVEZ, Petitioners, v. MAGGIE TOULOUSE OLIVER, in her official capacity as Clerk of Bernalillo County, and the STATE OF NEW MEXICO, Respondents. No.

VERIFIED PETITION FOR WRIT OF MANDAMUS
Peter S. Kierst Laura Schauer Ives Lynn E. Mostoller Alexandra Freedman Smith SUTIN, THAYER & BROWNE ACLU OF NEW MEXICO P.O. Box 566 A Professional Corporation Albuquerque, NM 87103-0566 Post Office Box 1945 (505) 266-5915 Albuquerque, NM 87103-1945 (505) 883-2500 Elizabeth O. Gill James D. Esseks AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 621-2493

Shannon P. Minter Christoper F. Stoll NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market St., Suite 370 San Francisco, CA 94102 (415) 392-6257

N. Lynn Perls LAW OFFICE OF LYNN PERLS Co-operating Attorney for NCLR 523 Lomas Blvd. NE Albuquerque, NM 87102 (505) 891-8918 J. Kate Girard WRAY & GIRARD, P.C. 102 Granite Ave. NW Albuquerque, NM 87102 (505) 842-8492

Maureen A. Sanders 102 Granite Ave. NW Albuquerque, NM 87102 (505) 243-2243

STATEMENT OF COMPLIANCE Pursuant to Rule 12-504(H) NMRA, the undersigned certifies that this Petition complies with Rule 12-504(G)(3) in that the body of the Petition is prepared in Times New Roman typeface and contains 5,987 words. The word count was obtained using Microsoft Office Word 2007.

Peter S. Kierst

PETITION FOR WRIT OF MANDAMUS I. INTRODUCTION Pursuant to Rule 12-504, NMRA, Petitioners Rose Griego and Kimberly Kiel, Miriam Rand and Ona Lara Porter, A.D. Joplin and Greg Gomez, and Therese Councilor and Tanya Struble, (“License Petitioners”) respectfully petition this Court to issue a writ of mandamus against Respondent Maggie Toulouse Oliver, in her official capacity as Clerk of Bernalillo County (“Clerk”), requiring her to issue them marriage licenses. License Petitioners further seek a writ of

mandamus against Respondent State of New Mexico (“State”) requiring it to treat License Petitioners’ marriages, once licensed in accordance with the statutes, as equal to all other marriages. Sarah Adams and Christine Hayward, residents of Albuquerque, New Mexico who were lawfully married in Vancouver, British Columbia, Canada, and Andrew Gans and Ronnie Chavez, residents of Albuquerque, New Mexico who were lawfully married in the State of New York (“Recognition Petitioners”),

respectfully petition this Court pursuant to Rule 12-504 NMRA, to issue a writ of mandamus requiring the State to recognize their out of state marriages and treat them as married for all purposes under state law. All Petitioners are long-term, committed same-sex couples. License

Petitioners commenced a civil action in the Second Judicial District Court seeking the right to marry in April. Griego et al v. Oliver and State, D-2021

CV-2013-02757. A few days ago, the United States Supreme Court struck down the section of the federal Defense of Marriage Act that discriminatorily excluded married same-sex couples from all federal spousal protections, responsibilities, and programs, affirming that these couples deserve equal treatment under the law. United States v. Windsor, 570 U.S.___ (June 26, 2013), slip op. (available at http:// www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf). As a result of the decision, the harms suffered by the License Petitioners because the Clerk and the State will not permit same-sex couples to wed have been significantly compounded. In addition, although the Attorney General has issued an opinion that provides that the State should recognize out-of-state marriages, 1 the State is not uniformly respecting these marriages, and in most areas is not in practice doing so, despite the absence of any legal reason to withhold recognition. In addition to depriving these couples of critical state law protections based on marriage, this failure to respect the valid out-of-state marriages of same-sex couples means that the Recognition Petitioners and all other similarly situated couples in this state, will also likely be denied access to significant federal protections and benefits that depend on whether a marriage is respected where the applicant(s) live. See Brief of Dr. Donna E. Shalala et al. at 7-13, United States v. Windsor, 570 U.S. __ (No. 12-307) (Mar. 1, 2013), 2013 WL 840018 (explaining that some federal agencies, including the Internal Revenue Service and the Social

See N.M. Att’y Gen. Op. 11-01 (Jan. 4, 2011), available at http://publicrecords.nmag.gov/opinions.
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Security Administration, currently look to whether a marriage is respected where the couple lives in deciding whether to recognize the marriage for federal benefits purposes). In the wake of the Windsor decision, it is not tenable for Petitioners to wait for a potentially lengthy litigation and appellate process to obtain the critical security and protection to which they and their families are entitled under both state and federal law. Without having access to marriage, same-sex couples in New Mexico have no way to enter into an officially recognized and protected family relationship, leaving them with no way to assume full responsibility for one another and no meaningful protection against being treated as legal strangers by third parties and the state. Same-sex couples with the means to do so can create some limited protections by entering into private contracts and agreements such as wills and powers of attorney. But the great majority of state and federal spousal rights,

protections, and benefits that allow married couples to join their lives together into a legally, financially, and socially interdependent unit cannot be replicated by private arrangements. These include, among many others, the right to file joint income taxes under state and federal law; the right to take time from work to care for an ill spouse under state and federal employment laws; the right to receive a deceased spouse’s pension or retirement benefits; the right to spousal social security benefits as well as widow/er benefits; the full benefit of community property protections that apply if spouses separate or divorce, as well as the laws
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that determine custody, visitation, support and other matters; and the automatic right to make health care decisions for a spouse when the spouse cannot. In

addition, barring same-sex couples from the legal shelter of marriage exposes them to constant intrusions upon their relationship by third parties and encourages and facilitates both private and official discrimination, because it “instructs all [state and] federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their [relationship] is less worthy than the marriages of others.” Windsor, slip op. at 25. As set forth below, the duty to issue License Petitioners marriage licenses and to treat Recognition Petitioners like all other married couples is clear and mandatory, the facts are undisputed, and the writs should issue. The time is now to reaffirm the New Mexico Constitution’s commitment to equal protection and due process under the law.

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II.

JURISDICTION This Court has original jurisdiction to issue writs of mandamus “against all

state officers, boards and commissions.” N.M. Const. art. VI, § 3; State ex rel Sandel v. Pub. Util. Comm., 1999-NMSC-019, ¶ 11, 127 N.M. 272. III. THE PARTIES 1) Each Petitioner couple has been for many years bound to each other by personal commitment and shared responsibility for the happiness, health and well being of one another and, in some cases, their children and other family members. 2) The Clerk, acting in her official capacity, declined to issue marriage

licenses to License Petitioner couples when requested to do so. 3) The State of New Mexico is named as a Respondent here because the action challenges the constitutionality of a statute, and because it has refused to recognize the lawful marriages of same-sex couple residents who married out of state. See State ex rel. King v. Lyons, 2011-NMSC-004, 149 N.M. 330. IV. STATEMENT OF FACTS UPON WHICH PETITION IS BASED 1) License Petitioners are residents and citizens of New Mexico. Each is of lawful age to marry and is not married to anyone other than the Petitioner they seek to marry in this case. None of the Petitioners is within the prohibited degree of relation to the person they desire to marry. See NMSA 1978, § 40-1-5, 6, and 7 (1876). 2) Each License Petitioner couple filled out applications for marriage

licenses at the Clerk’s offices, and the Clerk’s agents returned the couples’
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applications, explaining that they could not issue the couples marriage licenses as New Mexico law did not permit same-sex couples to marry. 3) The Clerk’s refusal to accept the applications and issue the licenses

prevented License Petitioners from being married in New Mexico. See NMSA 1978 § 40-1-10 (1905). 4) County clerks have a duty to ascertain that persons who appear before them to be married are statutorily eligible to marry, but no discretion to refuse to issue licenses to those who are so qualified. See NMSA 1978 § 40-1-10, and 11 (1957). 5) Recognition Petitioners are lawfully married out of state and are residents of New Mexico. 6) The State is not uniformly recognizing the legal validity of Recognition Petitioners’ marriages, despite New Mexico’s clear statutory law and an opinion from the Attorney General that the State should recognize these marriages. See NMSA 1978 § 40-1-4 (1862); N.M. Att’y Gen. Op. 11-01 (2011). For example, they are not permitted file state income taxes as married, to hold their shared income as community property, or to receive any other of the benefits, protections, and responsibilities given to spouses under New Mexico law. In addition, they are being denied important federal benefits. For example, Petitioner Gans is a state employee, and although the State allows its employees to put their domestic partners on their health insurance, which he has done, he is taxed on these benefits as if they were income, which he would not be if his marriage were recognized.
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Petitioner Adams, who is retired, receives Social Security benefits based on her income alone; if her marriage were recognized, however, she could receive a greater sum from the spousal benefit based on Petitioner Hayward’s income. 7) Marriage is the sole legal institution in New Mexico through which

couples can create a family unit that the state recognizes and protects. It conveys many extremely important intangible and tangible benefits. 8) Marriage is the sole legal institution under federal law through which the Petitioners can create a family unit that the federal government fully recognizes and protects. V. ARGUMENT

A. This Court Should Exercise Its Original Mandamus Jurisdiction This Court may exercise its original jurisdiction in mandamus if the petitioner presents a purely legal issue concerning a non-discretionary duty of a governmental official that (1) implicates fundamental constitutional questions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as direct appeal. See King, 2011-NMSC-004, ¶ 21. Further, this Court will exercise its original jurisdiction in mandamus only if there is not another adequate remedy at law. See id. Petitioners meet all conditions to invoke this Court’s original jurisdiction. 1. The issues here are purely legal and involve the non-discretionary duty of public officials. The Clerk denied marriage licenses to the License Petitioners
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based on her belief that New Mexico’s marriage license laws exclude same-sex couples from marriage. 2 The State apparently shares that interpretation of the

relevant statutes, and although the Attorney General has publicly stated that this exclusion likely violates the New Mexico Constitution, the State has taken no steps to order county clerks to issue marriage licenses to same-sex couples.3 Whether that interpretation of the marriage license laws is correct, and if so, whether the laws’ exclusion of same-sex couples violates the New Mexico Constitution, are pure questions of law. This Court has recognized that mandamus is “a proper proceeding in which to question the constitutionality of legislative enactments.” State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 363, 524 P. 2d 975, 979 (1974). With respect to the Recognition Petitioners, the Attorney General has issued an opinion concluding that valid marriages entered into by same-sex couples out of state should be recognized under New Mexico law. N.M. Att’y Gen. Op. 11-01 (2011). Yet such marriages are not being uniformly recognized by the State of New Mexico. This failure of the State to recognize the valid, out-of-state marriages of

See County Clerk Maggie Toulouse Oliver Statement on City of Santa Fe Same-Sex Marriage Licenses (March 20, 2013), available at http:// www.bernco.gov/news/168034/.
2

See News Release – Same-Sex Marriage, AG: State Law Limits Marriage to Opposite Sex Couples, Raises Question of Constitutionality of NM Law (June 6, 2013), available at http://www.nmag.gov/News-Releases; see also Same-Sex Marriage in New Mexico, Summary of Research (June 7, 2013), available at http:// www.nmag.gov/News-Releases.
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same-sex couples also raises purely legal questions—namely, whether that failure is consistent with New Mexico’s statutory and constitutional law. For both the License Petitioners and the Recognition Petitioners, the questions presented in this Petition involve the non-discretionary duties of public officials. County clerks have no discretion in issuing marriage licenses to qualified applicants and they face criminal sanctions for failing to do so properly. See

NMSA 1978 § 40-1-19 (1905). Nor does the State have discretion in recognizing valid, out-of-state marriages under NMSA § 40-1-4. See, e.g., Fellin v. Estate of Lamb, 99 N.M. 157, 655 P. 2d 1001 (1982), Leszinske v. Poole, 110 N.M. 663, 668, 798 P. 2d 1049 (Ct. App. 1990), cert. den. 110 N.M. 533 (1990). Both the issuing of marriage licenses and the recognition of valid, out-of-state marriages are uniquely ministerial acts for which the Court properly has mandamus jurisdiction. 2. This Petition involves fundamental constitutional questions of great

public importance. The fundamental nature and great importance of the questions presented is manifest. Marriage is a fundamental right. See Loving v. Virginia, 388 U.S. 1 (1967). It is profoundly important to the well-being and happiness of

society, families, and individuals. The denial to Petitioners of its benefits, but even more, the dignity and respect of its status, is a grave injustice. The institutionalized prejudice that it reflects is one that the New Mexico Constitution cannot and will not sustain. This Court exercised its original mandamus jurisdiction on the basis of the importance of the constitutionality of a concealed handgun permit statute.
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See

Baca v. New Mexico Dept. of Pub. Safety, 2002-NMSC-017, 132 N.M. 282. In King, this Court exercised original mandamus jurisdiction to resolve “the legal status of thousands of acres of land, along with the property rights of the private parties involved.” 2011-NMSC-004, ¶23. In so doing, the Court reiterated the

well-settled rule that “when issues of sufficient public importance are presented which involve a legal and not a factual determination, we will not hesitate to accept the responsibility of rendering a just and speedy resolution.” King, 2011-

NMSC-004, ¶ 23 (citing State ex rel Bird v. Apodaca, 91 N.M. 279, 282, 573 P. 2d 213 (1977)). In both those cases, this Court acted correctly to address crucial

issues of great public import. The issues presented here are of equal or greater significance and moment. The well being of hundreds, if not thousands, of New Mexico families hangs in the balance. Interests of property, finances, retirement, child care, access to healthcare and healthcare decisions, and “many aspects of married and family life, from the mundane to the profound” will be controlled by the outcome of this case. Windsor, slip op. at 23. 3. The questions posed by the Petition can be answered on undisputed facts. The facts set in Part IV are all that are necessary to the decision of this matter and there is no known basis for contesting them. Certainly, neither Respondent denies that License Petitioners were not allowed to be married because they are same-sex couples nor does the State deny that it treats the Recognition Petitioners differently from other couples married out of state who move to New Mexico.

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The only possible facts that could be necessary for the Court’s consideration of the constitutional questions before it relate to the question of the appropriate level of constitutional scrutiny under the equal protection clause and to any justifications for Respondents’ discrimination against Petitioners. Other than their interpretation of New Mexico statutory law, Respondents have not provided any justification for discriminating against same-sex couples in marriage, and the facts relevant to an assessment of the appropriate level of constitutional scrutiny are undisputed. Indeed, New Mexico law already recognizes that sexual orientation is not relevant to a person’s ability to work, raise children, or otherwise participate in or contribute to society. 4 Therefore, even if they were inclined to do so,

Respondents could not attempt to justify the exclusion of same-sex couples from marriage based on rationales related to procreation or parenting, as those are plainly incompatible with established New Mexico law. 4. The issues need an expeditious resolution that cannot be adequately

obtained by appeal. Under the circumstances outlined above, the pending district court action is not adequate either for License Petitioners or Recognition See, e.g., the Human Rights Act, NMSA 1978 § 28-1-1 et seq. (2000) (prohibiting sexual orientation discrimination in employment and public accommodation); NMSA 1978 § 29-1-2 (1921) (prohibiting certain discrimination by law enforcement officers based on sexual orientation); and NMSA 1978 § 31-18(B) 2 and 3 (2007) (providing enhanced penalties for crimes motivated by prejudice against the victim’s sexual orientation). In addition, same-sex couples are permitted by law in New Mexico to adopt children, including the children of their partner. See NMSA 1978 § 32A-5-11 (1993). And a partner may seek a declaration that she is the legal parent of a child she has been raising together with a same-sex partner, based on her having held out the child as her own, even if she has not adopted the child. See Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283.
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Petitioners. For the same reasons a civil action was inadequate for the Attorney General and Commissioner of Public Lands in King, supra, so the License Petitioners’ civil action is inadequate here: the issues are too important, the public interest in seeing that justice is done too great, and the actual financial and related burden of uncertainty on the persons involved too risky to accept delay. Indeed, same-sex couples in New Mexico are continuing to seek marriage licenses, despite Respondents’ clear and public stance on their interpretation of New Mexico law.5 In Windsor, the Supreme Court held that it is unconstitutional for the federal government to grant benefits to different-sex married couples and deny those benefits to same-sex married couples. See Windsor, slip op. at 20. While the Supreme Court made clear that marriage is about more than tangible benefits, it noted with emphasis that the federal government’s discrimination against same-sex couples means “their lives [are] burdened, by reason of government decree, in visible and public ways” and lists over a page of those, ranging from bankruptcy to veteran’s benefits, and including “den[ying] or reduc[ing] benefits allowed to families upon the loss of a spouse and parent” under Social Security. Windsor, slip op. at 23-24. For Petitioners this means: if they could be married in New Mexico today, or have their marriages recognized today, they could immediately obtain not only all the critical benefits provided by marriage under state law, but, in addition, all the benefits to which Windsor holds they are entitled, as well as the many stateSee e.g., 2 Same-Sex couples denied marriage in ABQ (June 26, 2013), available at http://www.abqjournal.com/main/214855/news/abq-news/2-same-sexcouples-denied-marriage-licenses-in-abq.html.
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level benefits of marriage listed above. These benefits are real and tangible, and cannot be recouped if their rights are vindicated through litigation and appeal two years from now. The fact is they are entitled by law to be treated as married

starting now and will suffer irreparable harm if they must wait many months to actually be so treated. The alternative of litigation and appeal is not an adequate substitute for this Court exercising its original jurisdiction now. B. The Court Should Not Read A Discriminatory Exclusion Of Same-Sex Couples Into New Mexico’s Marriage Statutes. On their face, New Mexico’s marriage statutes do not prohibit same-sex couples from marrying. Marriage is defined as “a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.” NMSA 1978, § 40-1-1 (1862). The statutes place various limitations on who can marry, including limitations based on age and degree of familial relationship between the contracting parties. See NMSA 1978, §§ 40-1-6, 40-1-7. The statutes contain no similar limitation based on the sex or sexual orientation of the parties. “Under the plain meaning rule of statutory construction, ‘[w]hen a statute contains language which is clear and unambiguous, [courts] must give effect to that language and refrain from further statutory interpretation.’” State v. Rivera, 2004NMSC-001, ¶ 10, 134 N.M. 768 (quoting State v. Jonathan M., 109 N.M. 789, 790, 791 P.2d 64, 65 (1990)). Courts “will not read into a statute any words that are not there, particularly when the statute is complete and makes sense as written.” State

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v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14 (citing Burroughs v. Bd. of County Comm’rs of Bernalillo County, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975)). Under these well-established canons of construction, the Clerk has a nondiscretionary duty to apply the statutes and issue marriage licenses to Petitioners. Given that specific limitations on who is eligible to marry are expressly set forth in the statute, it would be inappropriate for the Court to write into the statute an additional requirement that marriage is limited to different-sex couples when no such language appears in the text. “The doctrine of expressio unius est exclusio alterius—the expression or inclusion of one thing indicates exclusion of the other —is applicable here.” Vives v. Verzino, 2009-NMCA-083, ¶ 17, 146 N.M. 673 (citing Fernandez v. Española Pub. Sch. Dist., 2005–NMSC–026, ¶ 6, 138 N.M. 283). The marriage statutes’ inclusion of sample language for the marriage license application form does not alter this conclusion or render the statute ambiguous. The sample form includes a reference to “male applicant” and “female applicant,” NMSA 1978, § 40-1-18 (1961), but nowhere does the statute provide that this sample form must be reproduced verbatim by county clerks. To the contrary, all that is required is that the clerk use a form that is “substantially” as set forth in the statute. NMSA 1978, § 40-1-17 (1905). Nothing in these sections of the statute indicates they are intended to impose new limitations on eligibility for marriage that are not set forth in sections 40-1-6 and 40-1-7. Had the Legislature intended to create an additional sex-based or sexual orientation-based requirement for
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marriage, the logical way to do so would have been to list that requirement along with the other qualifications for marriage, not to bury it in a single line in an exemplar marriage license application form that county clerks are not required to use in any event. Likewise, the Recognition Petitioners are entitled to a writ of mandamus establishing that the State has a mandatory, non-discretionary duty to recognize their marriages for all purposes under state law. As noted above, New Mexico law expressly provides recognition to out-of-state marriages that are valid in the jurisdiction in which they were celebrated. NMSA 1978 § 40-1-4. As the Attorney General has concluded, this statute is fully applicable to the out-of-state marriages of same-sex couples, and no public policy of New Mexico precludes recognition of these marriages. See N.M. Att’y Gen. Op. 11-01 (2011) at 5. Finally, Petitioners respectfully request the Court to clarify that these mandatory duties are required not merely as a consequence of New Mexico statutes and public policy, but are required under the New Mexico Constitution. For the reasons stated below, denying same-sex couples the freedom to enter into civil marriages in this State, and to have their lawful marriages from other jurisdictions respected in New Mexico, deprives them of liberties guaranteed under multiple provisions of the state constitution.

C.

If Interpreted To Bar Same-Sex Couples From Marrying, The Marriage Statutes Violate The Constitution Of New Mexico
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1.Prohibiting Same-Sex Couples From Marrying Discriminates On The Basis Of Sexual Orientation In Violation Of The New Mexico Constitution’s Guarantee Of Equal Protection Of The Laws “Equal protection, both federal and state, guarantees that the government will treat individuals similarly situated in an equal manner.” Breen v. Carlsbad Mun. Schools, 2005-NMSC-028, ¶ 7, 138 N.M. 331, 333. If New Mexico law is interpreted to exclude same-sex couples from marriage and to prohibit recognition of valid out-of-state marriages of same-sex couples, then the law unconstitutionally discriminates against Petitioners on the basis of their sexual orientation. Same-sex couples are similarly situated to different-sex couples for the purpose of the marriage laws. In deciding whether two groups of people are

similarly situated, New Mexico courts have looked “beyond the classification to the purpose of the law.” New Mexico Right to Choose/NARAL v. Johnson, 1999NMSC-005, ¶ 40, 126 N.M. 788 (“NARAL”). Here, like different-sex couples who wish to marry, Petitioners are long-term, committed couples, many of whom have children together, who seek the relationship and family recognition and protection the state’s marriage laws provide. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 882-84 (Iowa 2009) (“for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation.”); Kerrigan v. Commissioner of Public Health, 257

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A.2d 407, 423, -24 (Conn. 2008); see also In re Marriage Cases, 183 P.3d 384, 435 n.54 (Cal. 2008). Discrimination based on sexual orientation warrants heightened scrutiny, or at a minimum, intermediate scrutiny. See Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012). This Court has held that intermediate scrutiny applies where “a discrete group has been subjected to a history of discrimination and political powerlessness based on a characteristic or characteristics that are relatively beyond the individuals’ control such that the discrimination warrants a degree of protection from majoritarian political process.” Breen, 2005-NMSC-028, ¶ 21, 138 N.M.

331. All these factors apply to lesbian, gay, and bisexual New Mexicans. It is uncontested that gay, lesbian, and bisexual New Mexicans have long suffered societal discrimination; for example, until 1975, New Mexico criminalized consensual sexual intimacy between persons of the same sex. New Mexico also lacked any state laws protecting lesbian, gay, and bisexual people against discrimination until 2003. Despite recent progress in eliminating anti-gay discrimination, lesbian, gay, and bisexual people remain a politically disadvantaged minority group. Sexual orientation is an integral part of a person’s identity that has no impact on a person’s ability to contribute to society and is highly resistant to change. See Windsor, 699 F.3d at 182-83 (“The aversion homosexuals experience has nothing to do with

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aptitude or performance.”).6

Yet lesbian, gay, and bisexual New Mexicans

continue to face discrimination in employment, public accommodation, and other areas, including state employees who faced adverse employment actions on the basis of their sexual orientation. See Williams Institute, New Mexico—Sexual

Orientation and Gender Identity Law and Documentation of Discrimination (Sept. 2009). 7 Nor have lesbian, gay, and bisexual people in New Mexico been able to secure legislation that would provide legal recognition to their relationships. Bills to establish domestic partnerships for same-sex couples were defeated in 2005, 2007, 2008, 2009, and 2010, in many cases without ever having been brought to a floor vote in the Senate. Without question, lesbian, gay, and bisexual New

Mexicans are “limited in [their] political power or ability to advocate within the political system,” and their “effective advocacy is seriously hindered by the need to overcome this already deep-rooted prejudice against their integration in society.” Breen, 2005-NMSC-028, ¶¶ 18, 21, 138 N.M. 331, 120 P.3d 413.

“[S]exual orientation is so integral an aspect of one’s identity [that] it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.” Kerrigan, 957 A.2d at 384, 442; accord In re Marriage Cases, 183 P.3d at 384, 442; Varnum, 763 N.W.2d at 893. The U.S. Supreme Court has also made clear that gay men and lesbians cannot be required — any more than heterosexual people — to sacrifice this central part of their identity. See Lawrence v. Texas, 539 U.S. 558, 574 (2003) (“Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”).
6

Available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/ NewMexico.pdf.
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Under any level of constitutional scrutiny, the exclusion of same-sex couples from marriage in New Mexico, as well as any denial of respect for the legal marriages of same-sex couples from other jurisdictions, violates Petitioners’ equal protection rights. Respondents have no legitimate interest, much less an important or compelling interest, in denying same-sex couples the freedom to marry. 2.Prohibiting Same-Sex Couples From Marrying Discriminates On The Basis Of Sex In Violation Of The New Mexico Constitution’s Equal Rights Amendment “New Mexico's Equal Rights Amendment is a specific prohibition that provides a legal remedy for the invidious consequences of the gender-based discrimination . . . .” NARAL, 1999-NMSC-005, ¶ 36. It has no counterpart in the federal Constitution and provides greater protection than the New Mexico Constitution’s general requirement of equal protection. See id. ¶ 30. “New

Mexico’s state constitution requires the State to provide a compelling justification for using such [gender-based] classifications to the disadvantage of the persons they classify.” Id. ¶ 43 (emphasis added). New Mexico’s exclusion of same-sex couples from marriage discriminates on the basis of sex, and cannot withstand this searching review. A law discriminates on the basis of sex when it restricts marriage to different-sex couples or otherwise denies legal rights and benefits based on the fact that an individual seeks to marry a person of the same sex rather than a person of a different sex. See Perry v. Schwarzenegger, 704 F. Supp. 2nd 921, 996 (N.D. Cal. 2010; In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (administrative
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decision); cf. Baehr v. Lewin, 852 P.2d 44, 67-68 (Haw. 1993). In Perry, the court explained that sex and sexual orientation “are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation.” Perry, 704 F. Supp. 2d at 996. Here, to the extent the New Mexico marriage statutes prohibit same-sex couples from marrying, they target lesbians and gay men “in a manner specific to their sexual orientation and, because of their relationship to one another . . . specifically due to sex.” Id. Each Petitioner in this proceeding wishes to marry or is married to a person of the same sex. If New Mexico’s marriage statutes are interpreted to prohibit this or deny recognition of it, each Petitioner would be deprived of the many benefits associated with marriage based solely on his or her sex. Because there is no

legitimate, let alone compelling, justification for this sex-based discrimination, the exclusion of same-sex couples from marriage, as well as the denial of recognition to the legal marriages of same-sex couples from other jurisdictions, cannot survive the strict scrutiny required under the New Mexico Equal Rights Amendment. 3.Prohibiting Same-Sex Couples From Marrying Deprives Them Of Fundamental Liberties In Violation Of The New Mexico Constitution’s Due Process Clause Barring same-sex couples from marriage violates New Mexico’s due process guarantee by depriving them of the fundamental right to marry. N.M. Const. art. II, § 18. In determining whether a right is fundamental under the New Mexico

Constitution, New Mexico courts generally consider: (1) whether the United States
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Supreme Court has recognized the right as fundamental; (2) the degree to which the class of persons seeking to assert the right is similar or dissimilar to those asserting similar interests in previous cases recognizing fundamental rights; and (3) the degree of abridgment of the right. See State v. Druktenis, 2004-NMCA-032, ¶¶ 89-96, 135 N.M. 223. All of these factors show that permitting the state to exclude all same-sex couples from marriage would violate their right to due process. First, the U.S. Supreme Court has repeatedly held that the freedom to marry is a fundamental right that is deeply rooted in privacy, liberty, and freedom of intimate association. See, e.g., Meyer v. Nebraska (1923) 262 U.S. 390, 399 (the federal due process clause protects the right to marry); Loving v. Virginia, 388 U.S. 1, 12 (1967) (marriage is a “fundamental freedom” under due process and “one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (marriage is a “right of privacy older than the Bill of Rights”); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause . . . .”); Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (marriage is an aspect of the “fundamental ‘right of privacy’ implicit in the . . . Due Process Clause”); Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984) (the right of intimate association limits the State’s “power to control the selection of one’s spouse”); Turner v. Safley, 482 U.S. 78, 95 (1987) (“the decision to marry is a fundamental right”); see also Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t,
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2010-NMCA-021, ¶ 36, 147 N.M. 720 (recognizing that marriage is a fundamental right under the federal constitution), aff'd, 2011–NMSC–039, 150 N.M. 650, 265 P. 3d 701. Second, partners in same-sex relationships have the same stake as others in the underlying autonomy, privacy, and associational interests protected by the fundamental freedom to marry. Without deciding whether the state must permit same-sex couples to marry, the United States Supreme Court has held that individuals in same-sex relationships have the same protected liberty and privacy interests in their intimate relationships as heterosexual people. See Lawrence , 539 U.S. at 577-78 ; cf. Windsor, slip op. at 4 (holding that laws that discriminate against married same-sex couples violate federal due process and equal protection because of their “interference with the equal dignity of same-sex marriages”). As New Mexico law already recognizes, same-sex couples are just as capable as others of entering committed relationships, raising children, and forming stable families that contribute both to their own welfare and to that of the larger society. Third, excluding all same-sex couples from marriage would severely infringe their rights to privacy, autonomy, and liberty. Without having access to marriage, same-sex couples in New Mexico have no way to enter into an officially recognized and protected family relationship, leaving them with no way to assume full responsibility for one another and no meaningful protection against being treated as legal strangers by third parties and the state.

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In sum, based on the factors applied in other cases, same-sex couples in New Mexico have the same fundamental right to marry as others, and any law excluding them from that right must be struck down as a violation of the New Mexico due process guarantee unless the state can show that it is necessary to achieve a compelling state interest, which it cannot do. See ACLU of N.M. v. City of

Albuquerque, 2006–NMCA–078, ¶ 19, 139 N.M. 761 (holding that heightened scrutiny applies when a law violates a fundamental right). Similarly, denying

recognition to same-sex couples who legally married in another jurisdiction would also violate their right to due process under the New Mexico Constitution. In

Windsor, the Supreme Court specifically held that married same-sex couples who are legally married under state law have a protected liberty interest in their marriage under the federal Due Process Clause. See Windsor, slip op. at 25

(“DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”) This Court should hold that they have a similarly protected right under the New Mexico Constitution. Delaying a conclusive determination that the Constitution and laws of New Mexico grant same-sex couples the freedom to marry within the state, and that New Mexico respects the valid marriages of same-sex couples from other jurisdictions, would cause immediate and irreparable harm to all New Mexico same-sex couples who are married or wish to marry. Any such delay in

determining their legal status, rights, and obligations will have the immediate effect of limiting these couples’ access to the many federal benefits now available
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to married same-sex couples after Windsor. The Court should act now to eliminate any uncertainty about same-sex couples’ eligibility to access these benefits, as well as the many benefits and obligations of marriage under state law. VI. PRAYER FOR RELIEF

Wherefore, Petitioners pray that the Court: a) Issue a writ of mandamus requiring Respondents, their agents,

employees, representatives, and all those acting in concert with them to execute and enforce the provisions of NMSA 1978, Chapter 40, Article I without regard to the sex or sexual orientation of the persons who seek enforcement or application of those statutes; b) Issue a writ of mandamus requiring Respondents to treat Petitioners

and all other same-sex couples who have lawfully married or will in the future lawfully marry in New Mexico or another jurisdiction equally with all other married couples under the laws of New Mexico; c) d) allows. Respectfully submitted, Order costs of suit, including but not limited to attorneys’ fees; and, Order such further relief as the Court deems proper and the law

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SUTIN, THAYER & BROWNE A Professional Corporation

ACLU OF NEW MEXICO Laura Schauer Ives Alexandra Freedman Smith P.O. Box 566 By__________________________ Albuquerque, NM 87103-0566 Peter S. Kierst Phone: (505) 266-5915 Ext. 1008 Lynn Mostoller lives@aclu-nm.org Cooperating Attorneys for ACLU-NM asmith@aclu-nm.org Post Office Box 1945 Albuquerque, NM 87103-1945 (505) 883-2500 psk@sutinfirm.com lem@sutinfirm.com

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Elizabeth O. Gill James D. Esseks AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Phone: (415) 621-2493 egill@aclunc.org jesseks@aclu.org N. Lynn Perls LAW OFFICE OF LYNN PERLS Co-operating Attorney for NCLR 523 Lomas Blvd. NE Albuquerque, NM 87102 Phone: (505) 891-8918 lynn@perlslaw.com J. Kate Girard Co-operating Attorney for ACLU-NM WRAY & GIRARD, P.C. 102 Granite Ave., N.W. Albuquerque, NM 87102 Phone: (505) 842-8492 jkgirard@wraygirard.com

Shannon P. Minter Christoper F. Stoll NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market St., Suite 370 San Francisco, CA 94102 Phone (415) 392-6257 SMinter@nclrights.org Cstoll@nclrights.org Maureen A. Sanders Cooperating Attorney and Legal Panel Member, ACLU-NM SANDERS & WESTBROOK, P.C. 102 Granite Ave. NW Albuquerque, NM 87102 Phone: (505) 243-2243 m.sanderswestbrook@qwestoffice.net

ATTORNEYS FOR PETITIONERS

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CERTIFICATE OF SERVICE I hereby certify that on July 2, 2013, I served a copy of the foregoing Petition for Writ of Mandamus on the following by first class mail: The Honorable Gary King New Mexico Attorney General Post Office Box 1508 Santa Fe, New Mexico 87504-1508 Randy M. Autio, Esq. Bernalillo County Attorney 520 Lomas Blvd. NW, 4th Floor Albuquerque, New Mexico 87102-2118

Peter S. Kierst

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