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State v. Druktenis1/30/2004
records but rather to marriage, procreation, contraception, family relations, child rearing, or education"); cf. Whalen, 429 U.S. at 609 (Stewart, J., concurring) (stating that the ratio decidendi of Griswold supporting constitutional protection relating to marriage, privacy in the home, and the right to use contraceptives, "does not recognize a general interest in freedom from disclosure of private information"). In addition, the invasion of the privacy and reputation of a convicted sex offender results not from the direct proscription of very private decisions and relationships, but rather from an indirect and incomplete restriction of the offender's ability to live peaceably and earn a livelihood. Further, the concern about restrictions as to those convicted of criminally heinous acts harming non-consenting victims, often children, is simply not comparable to the protection of the privacy and dignity of those involved in the intimate decisions and relationships protected in Supreme Court cases. See Lawrence, 123 S. Ct. at 2484 (noting that the homosexual activity unconstitutionally proscribed by the state " not involve minors . . . persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused").
A liberty interest is not absolute in the sense that no matter who exercises an aspect of it, what the nature of it is, or what degree of abridgment it confronts, the interest constitutes a fundamental right. Constitutional rights can receive greater or lesser degrees of protection, depending on these circumstances. See State ex rel. Stratton v. Sinks, 106 N.M. 213, 216, 741 P.2d 435, 439 (Ct. App. 1987) (distinguishing between the degree of First Amendment protection given to certain types of speech, stating that " hile commercial speech is not excluded from first amendment considerations, it deserves a smaller degree of protection than noncommercial speech"). "`Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.'" Arnold v. Bd. of Barber Exam'rs, 45 N.M. 57, 67, 109 P.2d 779, 785 (1941) (quoting West Coast Hotel Co., 300 U.S. at 392).
2. Intermediate Scrutiny Is Not Required
Citing several United States Supreme Court cases, the New Mexico Supreme Court describes intermediate scrutiny as "aimed at legislative classifications infringing important but not fundamental rights, and involving sensitive but not suspect classes." Richardson, 107 N.M. at 693, 763 P.2d at 1158; see also Alvarez v. Chavez, 118 N.M. 732, 736, 886 P.2d 461, 465 (Ct. App. 1994) (discussing the United States Supreme Court's creation in Plyler v. Doe, 457 U.S. 202, 217 (1982), of a level of scrutiny "falling somewhere between the extremes of strict scrutiny and rational basis," labeled intermediate scrutiny), overruled on other grounds by Trujillo III, 1998-NMSC-031, 32. If an important right is at stake, the intermediate scrutiny standard requires that the legislative classification be "substantially related to an important government interest." Trujillo III, 1998-NMSC-031, 15; Pinnell v. Bd. of County Comm'rs, 1999-NMCA-074, 27, 127 N.M. 452, 982 P.2d 503.
Intermediate scrutiny is employed because it is considered "more sensitive to risks of injustice than the [rational basis standard] and yet less blind to the needs of government flexibility than [strict scrutiny]." Richardson, 107 N.M. at 698, 763 P.2d at 1163 (quoting Tribe, supra, ยง 16-32, at 1610) (emphasis omitted); Marrujo, 118 N.M. at 757, 887 P.2d at 751 (citing same). Thus, the door to intermediate scrutiny opens when the interest falls short of being a fundamental right, but
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