Even though eight New Mexico counties are issuing marriage licenses to same-sex couples — most by court order — Republican state lawmakers are trying to fight marriage equality in the courts. In a new brief this week filed on their behalf by the anti-gay Alliance Defending Freedom, they offer the tired argument that same-sex couples simply aren’t similarly situation to opposite-sex couples because they cannot procreate — conveniently ignoring the many same-sex couples nevertheless raising children.
The brief also argues that same-sex couples should not be considered what New Mexico courts call a “sensitive” class, which would entitle them to more protection under the state Constitution, because they are way too politically powerful — even moreso than women:
The touchstone of this Court’s analysis is whether “a discrete group . . . warrants a degree of protection from the majoritarian political process.” Yet as demonstrated below, that simply cannot be said of same-sex couples who seek to redefine marriage to include their relationships.
Unlike women or persons with mental disabilities — groups that this Court has previously classified as sensitive — same-sex couples possess political power that vastly exceeds their small percentage of the population. Women account for approximately half of the population, and so do people who experience “a diagnosable mental illness in their lifetimes.”
In contrast, individuals who identify as gay — even though they comprise less than 4 percent of the population — have achieved a disproportionate level of political power and success, particularly on the issue of marriage.
The brief cites examples such as the Democratic Party supporting marriage equality, President Obama supporting marriage equality, and the many victories marriage equality has had in state legislatures or at the ballot. (It notably does not mention that New Mexico has a female governor.) Essentially, because gay people have found allies, they’ve disqualified themselves from protection under the law.
Republicans in the U.S. House of Representatives attempted a similar argument when defending the Defense of Marriage Act at the Supreme Court, though they stopped short of blatantly contrasting the gay community with women. Of course, laws had been passed protecting women from discrimination before the Supreme Court first ruled them a suspect class, pretty clearly nullifying the argument.
A group’s size bears no influence on the validity of its claim to equality. If anything, a group’s small population should warrant higher protection from majoritarian influence, regardless of how much success it’s had advocating for itself. What is ironic is that groups that oppose marriage equality often boast how many states have banned same-sex marriage, claiming that that’s the true barometer of the issue, not the consistent polling that has shown a majority of support for marriage equality over the past several years. So, even though over 30 states have an outright ban on their relationships, same-sex couples are apparently so politically powerful that they are not vulnerable to oppression. That’s not only not convincing, it doesn’t even reflect reality.
(HT: Kathleen Perrin.)