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State v. Druktenis1/30/2004
more than the bare-bones traditional statement that the person attacking the statute has the burden to prove that "the statute's classification is not rationally related to the legislative goal." Trujillo III, 1998-NMSC-031, 14 (citing Richardson, which, as indicated in the text of the present opinion, cited McGowan). In rational basis scrutiny, "a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." Beach Communications, 508 U.S. at 315. " hen employing the rational-basis test, courts will not consider controversies surrounding the academic examination of legislative policy." Cummings, 1996-NMSC-035, 40.
Based on our full analysis of rational scrutiny, we conclude that the traditional rational basis standard is the standard we must use when strict and intermediate scrutiny are not required. Under that standard, we hold the SORNA notification provisions pass constitutional muster because they are rationally related to a legitimate governmental interest, purpose, and goal, and because Defendant has not sustained his burden to negative every conceivable basis that might reasonably support their use.
E. The New Mexico Constitution
Defendant did not, on appeal or below, discuss or request separate analyses or approaches under the New Mexico Constitution. See State v. Gomez, 1997-NMSC-006, 1-2, 12-24, 122 N.M. 777, 932 P.2d 1 (discussing requirements for preserving a State constitutional claim asserted beside a federal constitutional claim). More particularly, he has not asked us to interpret Article II, Section 18 of our Constitution to afford more protection than the Fourteenth Amendment or to require different constitutional scrutiny than that required as to claims based on the Fourteenth Amendment. We have therefore based our discussion and results in this opinion on the constitutional requirements and protections as those have developed or been limited by United States Supreme Court cases. See State v. Coffin, 1999-NMSC-038, 54 n.2, 128 N.M. 192, 991 P.2d 477.
Judge Bustamante's concurring opinion suggests that the result might be favorable to a defendant under a claim of violation of due process under the New Mexico Constitution with the concomitant request that greater protection be provided in regard to the defendant's liberty interest. It would appear that, under a substantive due process analysis, for a New Mexico court to require a hearing on the issue of whether a defendant is likely to be a recidivist, Trujillo III will have to be distinguished or overruled. It would require reviving the heightened scrutiny that Trujillo III appears to have rejected, or adopting another variation of scrutiny such as that suggested by Justice O'Connor in her concurring opinion in Lawrence, 123 S. Ct. at 2486. Judge Bustamante's concurring opinion suggests adopting Justice Harlan's approach in his dissent in Poe v. Ullman, 367 U.S. 497, 540-55 (1961). While Justice Harlan eloquently expresses why the Fourteenth Amendment should protect the use of contraception by married persons and the giving of advice to married persons in contraception use, the essence of his dissent is that the liberty interests in question are fundamental rights because they involve "the most intimate details of the marital relation" within the home, and that strict scrutiny should be applied. Id. at 545-46, 548, 554.
F. Conclusion
In sum, while the interests at stake can be viewed as important ones in the scrutiny context, they neither rise to the level of a fundamental right nor belong to a sensitive class requiring either strict or intermediate scrutiny. Furthermore, Def
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