scrutiny analysis in New Mexico

2012“When employing the minimal scrutiny test, the courts . . . will uphold the statute if any state of facts reasonably can be conceived that will sustain the challenged classification.” Richardson v. Carnegie Library Rest., Inc., 107 N.M. 688, 693 , 763 P.2d 1153, 1158 (1988), overruled on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031 , 125 N.M. 721 , 965 P.2d 305 . {17} We cannot say that requiring ignition interlock devices for all DWI offenders, regardless of the type of substance that led to the conviction, amounts to an act of the Legislature that “is unreasonable and arbi

2012“When employing the minimal scrutiny test, the courts . . . will uphold the statute if any state of facts reasonably can be conceived that will sustain the challenged classification.” Richardson v. Carnegie Library Rest., Inc., 107 N.M. 688, 693 , 763 P.2d 1153, 1158 (1988), overruled on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031 , 125 N.M. 721 , 965 P.2d 305 . {17} We cannot say that requiring ignition interlock devices for all DWI offenders, regardless of the type of substance that led to the conviction, amounts to an act of the Legislature that “is unreasonable and arbi

2015Dep’t, 1994-NMSC-116 , ¶ 11, 118 N.M. 753 , 887 P.2d 747 13 (internal quotation marks and citations omitted). 14 {50} Although the initial burden still rests upon a plaintiff to establish that the 15 legislation at issue infringes upon an important individual interest, the state’s burden 16 of proof under an intermediate scrutiny analysis is different from the burden required 17 under a strict scrutiny analysis.

2015Dep’t, 1994-NMSC-116 , ¶ 11, 118 N.M. 753 , 887 P.2d 747 13 (internal quotation marks and citations omitted). 14 {50} Although the initial burden still rests upon a plaintiff to establish that the 15 legislation at issue infringes upon an important individual interest, the state’s burden 16 of proof under an intermediate scrutiny analysis is different from the burden required 17 under a strict scrutiny analysis.

1988And although even the Supreme Court has presented the heightened scrutiny test in a myriad of fashions, it has been characterized, in whatever form, at least by a “sharper focus” on legislative classifications “poised between the largely toothless invocation of minimum rationality and the nearly fatal invocation of strict scrutiny.” Tribe, § 16-32, at 1601; see Cleburne, 473 U.S. at 451 , 105 S.Ct. at 3260 (Stevens, J., concurring) (standards of review for equal protection challenges reflect “a continuum of judgmental responses to differing classifications which have been explained in opinions

1988And although even the Supreme Court has presented the heightened scrutiny test in a myriad of fashions, it has been characterized, in whatever form, at least by a “sharper focus” on legislative classifications “poised between the largely toothless invocation of minimum rationality and the nearly fatal invocation of strict scrutiny.” Tribe, § 16-32, at 1601; see Cleburne, 473 U.S. at 451 , 105 S.Ct. at 3260 (Stevens, J., concurring) (standards of review for equal protection challenges reflect “a continuum of judgmental responses to differing classifications which have been explained in opinions

2016See, e.g., In re Vincent, 2007-NMSC-056, ¶ 15 , 143 N.M. 56 , 172 P.3d 605 (“[F]or a challenged provision to be narrowly tailored to serve a compelling state interest under a strict scrutiny analysis, it must not be under-inclusive.”). {95} Tobe sure, a tailoring analysis can be useful to discern whether the Legislature created a discriminatory classification with animus toward a particular, discrete group and disguised that animus with a socioeconomic rationale.

2016See, e.g., In re Vincent, 2007-NMSC-056, ¶ 15 , 143 N.M. 56 , 172 P.3d 605 (“[F]or a challenged provision to be narrowly tailored to serve a compelling state interest under a strict scrutiny analysis, it must not be under-inclusive.”). {95} Tobe sure, a tailoring analysis can be useful to discern whether the Legislature created a discriminatory classification with animus toward a particular, discrete group and disguised that animus with a socioeconomic rationale.

2016See, e.g., Romer v. Evans, 8 517 U.S. 620, 632 (1996) (“[The] sheer breadth [of Colorado’s Amendment 2 9 prohibiting governmental action designed to protect gay and lesbian persons from 10 discrimination] is so discontinuous with the reasons offered for it that the amendment 11 seems inexplicable by anything but animus toward the class it affects; it lacks a 12 rational relationship to legitimate state interests.”); City of Cleburne v. Cleburne 13 Living Ctr., Inc., 473 U.S. 432, 449-50 (1985) (holding that a city’s requirement of 14 a special use permit for the operation of a home for the men

2016See, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (“[The] sheer breadth [of Colorado’s Amendment 2 prohibiting governmental action designed to protect gay and lesbian persons from discrimination] is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.”); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 449-50 (1985) (holding that a city’s requirement of a special use permit for the operation of a home for the mentally disabled was

2015I 8 begin with a review of the key United States Supreme Court decisions interpreting 9 the liberty interest protected by the federal due process clause. 10 A. Federal Due Process Precedents 11 {79} Long before it decided Glucksberg, the United States Supreme Court 12 interpreted the substantive component of the due process clause to protect aspects of 13 personal autonomy as “fundamental rights,” notwithstanding that they are not 14 mentioned in the text of the Bill of Rights, with which the government may not 15 interfere unless it meets its burden under the strict scrutiny standard to prove

2015See Casey, 505 U.S. at 847 (explaining that the United States Supreme Court has never accepted the view that “liberty encompasses no more than those rights already guaranteed to the individual against [governmental] interference by the express provisions of the first eight Amendments to the Constitution”). {80} These previously recognized fundamental rights include the right to marry, see Loving v. Virginia, 388 U.S. 1, 2 (1967), and aspects of parental autonomy, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the rights to the companionship, care, custody, and management

2015I 8 begin with a review of the key United States Supreme Court decisions interpreting 9 the liberty interest protected by the federal due process clause. 10 A. Federal Due Process Precedents 11 {79} Long before it decided Glucksberg, the United States Supreme Court 12 interpreted the substantive component of the due process clause to protect aspects of 13 personal autonomy as “fundamental rights,” notwithstanding that they are not 14 mentioned in the text of the Bill of Rights, with which the government may not 15 interfere unless it meets its burden under the strict scrutiny standard to prove

2015See Casey, 505 U.S. at 847 (explaining that the United States Supreme Court has never accepted the view that “liberty encompasses no more than those rights already guaranteed to the individual against [governmental] interference by the express provisions of the first eight Amendments to the Constitution”). {80} These previously recognized fundamental rights include the right to marry, see Loving v. Virginia, 388 U.S. 1, 2 (1967), and aspects of parental autonomy, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the rights to the companionship, care, custody, and management

2015I 8 begin with a review of the key United States Supreme Court decisions interpreting 9 the liberty interest protected by the federal due process clause. 10 A. Federal Due Process Precedents 11 {79} Long before it decided Glucksberg, the United States Supreme Court 12 interpreted the substantive component of the due process clause to protect aspects of 13 personal autonomy as “fundamental rights,” notwithstanding that they are not 14 mentioned in the text of the Bill of Rights, with which the government may not 15 interfere unless it meets its burden under the strict scrutiny standard to prove

2015See Casey, 505 U.S. at 847 (explaining that the United States Supreme Court has never accepted the view that “liberty encompasses no more than those rights already guaranteed to the individual against [governmental] interference by the express provisions of the first eight Amendments to the Constitution”). {80} These previously recognized fundamental rights include the right to marry, see Loving v. Virginia, 388 U.S. 1, 2 (1967), and aspects of parental autonomy, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the rights to the companionship, care, custody, and management

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing 18 that the government bears the burden of proof under intermediate scrutiny to “prove 51 1 that the classification or discrimination caused by the legislation is substantially 2 related to an important government interest” (internal quotation marks and citation 3 omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075 , 4 ¶ 29, 284 P.3d 1090 (recognizing that the government bears the burden of proof under 5 strict scrutiny “to show that it has a compelling interest in the challenged scheme and 6 that it has accomplished its goa

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing 18 that the government bears the burden of proof under intermediate scrutiny to “prove 51 1 that the classification or discrimination caused by the legislation is substantially 2 related to an important government interest” (internal quotation marks and citation 3 omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075 , 4 ¶ 29, 284 P.3d 1090 (recognizing that the government bears the burden of proof under 5 strict scrutiny “to show that it has a compelling interest in the challenged scheme and 6 that it has accomplished its goa

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing 18 that the government bears the burden of proof under intermediate scrutiny to “prove 51 1 that the classification or discrimination caused by the legislation is substantially 2 related to an important government interest” (internal quotation marks and citation 3 omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075 , 4 ¶ 29, 284 P.3d 1090 (recognizing that the government bears the burden of proof under 5 strict scrutiny “to show that it has a compelling interest in the challenged scheme and 6 that it has accomplished its goa

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing that the government bears the burden of proof under intermediate scrutiny to “prove that the classification or discrimination caused by the legislation is substantially related to an important government interest” (internal quotation marks and citation omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075, ¶ 29 , 284 P.3d 1090 (recognizing that the government bears the burden of proof under strict scrutiny “to show that it has a compelling interest in the challenged scheme and that it has accomplished its goals by employing th

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing 18 that the government bears the burden of proof under intermediate scrutiny to “prove 51 1 that the classification or discrimination caused by the legislation is substantially 2 related to an important government interest” (internal quotation marks and citation 3 omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075 , 4 ¶ 29, 284 P.3d 1090 (recognizing that the government bears the burden of proof under 5 strict scrutiny “to show that it has a compelling interest in the challenged scheme and 6 that it has accomplished its goa

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing that the government bears the burden of proof under intermediate scrutiny to “prove that the classification or discrimination caused by the legislation is substantially related to an important government interest” (internal quotation marks and citation omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075, ¶ 29 , 284 P.3d 1090 (recognizing that the government bears the burden of proof under strict scrutiny “to show that it has a compelling interest in the challenged scheme and that it has accomplished its goals by employing th

2015I 8 begin with a review of the key United States Supreme Court decisions interpreting 9 the liberty interest protected by the federal due process clause. 10 A. Federal Due Process Precedents 11 {79} Long before it decided Glucksberg, the United States Supreme Court 12 interpreted the substantive component of the due process clause to protect aspects of 13 personal autonomy as “fundamental rights,” notwithstanding that they are not 14 mentioned in the text of the Bill of Rights, with which the government may not 15 interfere unless it meets its burden under the strict scrutiny standard to prove

2015See Casey, 505 U.S. at 847 (explaining that the United States Supreme Court has never accepted the view that “liberty encompasses no more than those rights already guaranteed to the individual against [governmental] interference by the express provisions of the first eight Amendments to the Constitution”). {80} These previously recognized fundamental rights include the right to marry, see Loving v. Virginia, 388 U.S. 1, 2 (1967), and aspects of parental autonomy, see, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the rights to the companionship, care, custody, and management

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing 18 that the government bears the burden of proof under intermediate scrutiny to “prove 51 1 that the classification or discrimination caused by the legislation is substantially 2 related to an important government interest” (internal quotation marks and citation 3 omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075 , 4 ¶ 29, 284 P.3d 1090 (recognizing that the government bears the burden of proof under 5 strict scrutiny “to show that it has a compelling interest in the challenged scheme and 6 that it has accomplished its goa

2015Compare Breen, 2005-NMSC-028, ¶ 13 (recognizing that the government bears the burden of proof under intermediate scrutiny to “prove that the classification or discrimination caused by the legislation is substantially related to an important government interest” (internal quotation marks and citation omitted)), with City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075, ¶ 29 , 284 P.3d 1090 (recognizing that the government bears the burden of proof under strict scrutiny “to show that it has a compelling interest in the challenged scheme and that it has accomplished its goals by employing th

2013NARAL, 1999-NMSC-005 , ¶¶ 29, 37 (quoting Op. of the Justices to the House of Representatives, 371 N.E.2d 426 , 428 (Mass. 1977) (“ ‘To use a standard . . . which requires any less than the strict scrutiny test would negate the purpose of the equal rights amendment and the intention of the people in adopting it.’ ”)). {46} Another key rationale for applying strict scrutiny to gender-based classifications was the history of invidious discrimination against women, including restrictions on their rights to vote, hold public office, NARAL, 1999-NMSC-005, ¶¶ 32-34 , and other “early laws [that] con

2013NARAL, 1999-NMSC-005 , ¶¶ 29, 37 (quoting Op. of the Justices to the House of Representatives, 371 N.E.2d 426 , 428 (Mass. 1977) (“ ‘To use a standard . . . which requires any less than the strict scrutiny test would negate the purpose of the equal rights amendment and the intention of the people in adopting it.’ ”)). {46} Another key rationale for applying strict scrutiny to gender-based classifications was the history of invidious discrimination against women, including restrictions on their rights to vote, hold public office, NARAL, 1999-NMSC-005, ¶¶ 32-34 , and other “early laws [that] con

2012The Tenth Circuit has noted that in order to apply the hybrid-rights theory, the claim “at least requires a colorable showing of infringement of a companion constitutional right.” Axson-Flynn v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (internal quotation marks and citation omitted).

2012The Tenth Circuit has noted that in order to apply the hybrid-rights theory, the claim “at least requires a colorable showing of infringement of a companion constitutional right.” Axson-Flynn v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (internal quotation marks and citation omitted).

2012See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993) (reasoning that strict scrutiny applies to a free exercise claim where the relevant statute is either not generally applicable or not neutral).

2012See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993) (reasoning that strict scrutiny applies to a free exercise claim where the relevant statute is either not generally applicable or not neutral).

2012See Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) 14 (recognizing that a heightened scrutiny exception may be appropriate where a free exercise claim has been coupled with some other constitutional claim).

2012See Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) (recognizing that a heightened scrutiny exception may be appropriate where a free exercise claim has been coupled with some other constitutional claim).

1996See Jaramillo v. State, 111 N.M. 722, 725 , 809 P.2d 636, 639 (Ct.App.) (“[W]e find nothing that specifically indicates that purely procedural matters impinging on the right of access to the courts must be analyzed under the heightened scrutiny analysis.”), cert. denied, 111 N.M. 416 , 806 P.2d 65 (1991).

1996See Jaramillo v. State, 111 N.M. 722, 725 , 809 P.2d 636, 639 (Ct.App.) (“[W]e find nothing that specifically indicates that purely procedural matters impinging on the right of access to the courts must be analyzed under the heightened scrutiny analysis.”), cert. denied, 111 N.M. 416 , 806 P.2d 65 (1991).

2015Williamson, 316 U.S. 535 , 9 541 (1942) (decided on equal protection grounds, emphasizing the “fundamental” 10 nature of individual choice about procreation and the corresponding standard of 11 “strict scrutiny”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925) 12 (recognizing the right to raise one’s children); Meyer v. Nebraska, 262 U.S. 390 , 400 13 (1923) (discussing the parental right to control children’s education).

2012See ACLU of N.M., 2006-NMCA-078, ¶ 19 (stating the government’s burden under a strict scrutiny analysis). {63} With regard to the lesser Renton scrutiny and to strict scrutiny, the City cannot reasonably contend that the Ordinance cannot be more narrowly tailored.

2012“Congress and the courts have been sensitive to the needs flowing from the [f]ree [e]xercise [c]lause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs.” United States v. Lee, 455 U.S. 252, 261 (1982).