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SANTA FE — The first round of official arguments regarding the statewide legalization of same-sex marriage centered on the ability of married couples to produce a child.
Wednesday morning, New Mexico’s Supreme Court chambers were the battleground for lawyers from various parties debating whether same-sex marriage should be legalized around the state.
Those who supported its legalization emphasized that making marriage gender-specific is discrimination. In return, those against legalization argued that the primary social purpose of marriage is procreation, and that same-sex marriages would not fulfill that.
But the Supreme Court did not issue an official ruling after the two-hour skirmish.
James Campbell, the Scottsdale-based lawyer from the Christian law group Alliance Defending Freedom who represented the Legislature in the debates, said his side is fighting the passage of same-sex marriage to preserve a family’s social purpose.
“What was before the court today was whether to redefine the fundamental meaning of marriage, and that’s an essential social policy question,” he said. “The people should decide through their elected officials for themselves. The future of marriage is an important question for the people to decide because it impacts their lives and how their society functions.”
Wednesday’s court session was a result of the state’s Second Judicial District Court deeming same-sex marriage constitutional in late August, which led the Bernalillo County Clerk to issue licenses to same-sex residents of the county. Bernalillo became the second county in New Mexico to do so with legal backing.
Because of inconsistencies around the state, New Mexico’s 41 county clerks agreed to bring the case to the Supreme Court for a statewide judicial verdict. So far, eight county clerks have issued same-sex marriage licenses since Doña Ana became the first in early August.
Campbell said his team is not arguing that kids who grow up without biological parents do not succeed in life. He said he expressed his views on the procreation aspect of marriage only in response to the five Supreme Court justices’ questions.
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Still, he reiterated that the main societal role of marriage is procreation.
“The focus of our argument here is that is there a rational reason to distinguish between opposite-sex couples and same-sex couples for the purpose of marriage,” he said. “As we looked at the purpose of marriage over the history of our society in New Mexico, we see time and time again that it is uniquely concerned about having the children have a mother and a father.”
Campbell said the government should refuse to recognize same-sex marriages in order to promote biological procreation, which is the “ideal.”
“One thing to emphasize is why the government recognizes marriage,” he said. “The government has unique interest in children — in ensuring, as best as we can as a society, that they’re raised by their own mother and father.”
But Maureen Sanders, a lawyer representing same-sex couples seeking marriage licenses, said she does not agree with Campbell’s arguments because she believes that marriage amounts to more than the production of offspring.
“As you heard in court today, I believe and we all believe that marriage is something different than just a vehicle for procreation and natural parenting,” she said. “I disagree with the justifications offered by ADF and others about why same-sex couples should not be allowed to be married.”
Since procreation had never been a requirement for marriage in New Mexico, Sanders said it should not be relevant in this case.
“The state of New Mexico has never made a promise to have children a condition of marriage,” she said. “So it should not be offered as a reason why same-sex couples ought not to be able to marry in New Mexico.”
Sanders said same-sex couples should be allotted the same legal rights as their heterosexual counterparts.
“Same-sex couples should be allowed to be married and should be allowed to raise their children if they choose to,” she said.
James Esseks, director of the Lesbian, Gay, Bisexual, Transgender & AIDS Project for the American Civil Liberties Union Foundation, said he disagrees with Campbell’s argument on the basis that heterosexual couples do not base their decisions to marry on same-sex unions.
“I have yet to meet any straight people who are going to decide to get married or not get married, or to have kids or not have kids, based on whether gay people get to get married or not,” he said. “It just doesn’t make any sense.”
But Campbell said that adoption of children, whether by same-sex or straight couples, is “a different question.”
“Any time we’re talking about adoption, whether it’s a same-sex or opposite-sex couple, we’re one step removed from the purpose of marriage,” he said. “When we’re talking about marriage, it’s an institution that is uniquely concerned about binding children with their own mother and father. That has been its purpose since the dawn of civilization, and that is still a vital purpose in society today.”
Allowing same-sex couples to get married in New Mexico would promote the interest of families in the state, Esseks said. He said it would give same-sex parents the same opportunities as heterosexual couples to provide for their children.
“They are raising those kids,” he said. “They and their children need the protections that come with marriage every bit as much as the straight people who are raising their kids. And the state’s interest in families is to ensure that the families are stable and the kids have all the protections and needs that they have.
Marriage helps all those people.”
Esseks said he and other proponents of same-sex marriage urge the court to realize Campbell’s argument does not justify preventing legalization.
“I think that (Campbell’s position) not only doesn’t explain why same-sex couples are excluded from marriage, but it’s nonsense,” he said. “We’re urging the court to say ‘that is not a justification for keeping loving, committed same-sex couples from marrying,’ especially because many of the same-sex couples … have kids.”
Despite more than two hours of discourse with the justices on the podium, Campbell said he does not feel discouraged. He admitted the questions the justices posed were difficult but necessary.
Campbell said he is uncertain of how the Supreme Court will decide the matter. But he said that the state Legislature should have the final word on the statewide legalization of same-sex marriage regardless.
“It’s a very, very dangerous game to start predicting what the courts are going to decide, and I will not engage in that,” he said. “What I will emphasize is what I said in the courts: this is an important issue for the people … and this is a question that the people should be able to decide for themselves.”
After the hearings, the Supreme Court did not specify whether or when it will hold the next round of arguments. It is also unclear when the court will issue an official ruling on the matter.
