New Mexico Supreme Court Rules that the Guild Cinema’s Erotic Film Festival Did Not Violate City Zoning Law

ALBUQUERQUE, NM—Today, the New Mexico Supreme Court ruled that the by hosting ‘Pornotopia,’ a two-day erotic film festival, Guild Cinema did not violate city zoning laws regarding so-called ‘adult amusement establishments.’ The Supreme Court’s ruling overturns the rulings of two lower courts. Although the ACLU of New Mexico, also brought First Amendment Free Speech claims, the court chose to rule narrowly on the zoning issue and did not reach the constitutional questions raised by the ACLU of New Mexico’s suit.

“We are tremendously pleased that the Supreme Court overturned the lower courts’ ruling against the Guild Cinema today,” said ACLU-NM Executive Director Peter Simonson. “Common sense dictates that hosting one erotic film festival does not make the Guild Cinema an ‘adult amusement establishment,’ any more than a club that plays jazz music one night out of the year is a ‘jazz club.’”

The ACLU of New Mexico originally filed the suit on behalf of the Guild Cinema in 2008, after two zoning enforcement inspectors from the city cited the theater for “operating as an adult amusement establishment” in an area not zoned for adult entertainment. The Guild was convicted of this zoning violation in Albuquerque Metropolitan Court, and the conviction was upheld in State District Court.

Today, the Supreme Court overturned the lower courts’ rulings concluding:

Because the Guild engaged in only occasional showings of adult films, the Guild is not an adult amusement establishment as defined in the Albuquerque Code of Ordinances, and the zoning rules governing adult amusement establishments are inapplicable to it. Wetherefore reverse the Court of Appeals and vacate the Guild’s conviction.

“This is a significant victory for free speech in Albuquerque,” said ACLU-NM Legal Director Laura Schauer Ives. “In essence, the court has said that the city cannot limit speech, even speech it doesn’t like, without actual justification.”

The Nob Hill Business Association described the Guild’s erotic film festival as “a success, not only in driving [customer] traffic to the area, but also in the quality and caliber of those customers.” The Association specifically noted that there were “almost no negative comments” and that it hoped the film festival would continue to present the festival. Several local business owners stated that the festival had positive effects on the neighborhood, including increased sales and broader public awareness of the businesses in the area. The festival did not cause any crime or other negative effects in the neighborhood.

“I am thrilled with today’s Supreme Court ruling,” said Guild Cinema co-owner Keif Henley. “This ruling guarantees that our theater can show an occasional adult-themed film without being charged criminally.”

Read the Supreme Court’s full decision here.

ACLU-NM Legal Director Laura Schauer Ives represented the plaintiff in this case.

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ALBUQUERQUE, N.M—Today, the New Mexico Supreme Court issued an order setting a hearing for October 23, 2013 to consider a request by the New Mexico Association of Counties that the court immediately decide whether New Mexico law permits same-sex couples to marry. All 33 county clerks in the state joined in the Association’s request that the Supreme Court resolve the issue.

The counties’ request to the Supreme Court was filed in response to a case brought by six same-sex couples represented by the American Civil Liberties Union of New Mexico (ACLU-NM), the national ACLU, the National Center for Lesbian Rights (NCLR), and local attorneys. On September 3, Judge Alan Mallot of the Second Judicial District Court in Albuquerque issued a declaratory judgment against all 33 county clerks, ruling that the New Mexico Constitution requires issuance of marriage licenses to otherwise-qualified same-sex couples.  The counties requested the Supreme Court to immediately review Judge Mallot’s order in order to resolve several pending cases around the state concerning the issue of marriage for same-sex couples.
Today’s order by the Supreme Court invited the six plaintiff couples to respond to the counties’ request by September 23 and to appear at oral argument October 23. The couples will argue that the Court should accept the counties’ request and immediately extend the freedom to marry to same-sex couples statewide.

Statement by ACLU of New Mexico Executive Director Peter Simonson:

“We welcome the Supreme Court’s order and hope that it will lead to a speedy decision establishing the freedom to marry for all same-sex couples in New Mexico.  Now is the time for New Mexico to treat same-sex couples with the same dignity and respect as all other couples and fully respect their lifelong commitments to each other and their families. We look forward to presenting the strongest possible arguments on behalf of our clients and all New Mexico same-sex couples.  We thank the Association of Counties for asking the Supreme Court to resolve these crucial issues immediately.”   

Said NCLR Legal Director Shannon Minter, Esq.:

“Every New Mexico court that has considered the issue has concluded that New Mexico law requires that same-sex couples have the same freedom to marry as others and deserve equal protection under the law. We are grateful to the New Mexico Supreme Court for recognizing the importance of this issue and putting the case on a fast track.  We look forward to the day when all families are treated with equal dignity and respect, and all children grow up in a world where lesbian, gay, bisexual, and transgender people have the same legal protections and freedoms as others.”

In addition to the ACLU of New Mexico, the national ACLU, and NCLR, the six same-sex couples are represented by the Sutin Law Firm, and Albuquerque attorneys Maureen Sanders, Kate Girard, and Lynn Perls.

Today I am celebrating my mother’s life and thinking about the comfort her choice of physician-aid-in-dying has brought to me over the years.  On my walk this morning I had a big smile on my face thinking of my time with her at the end of her life.

Today, September 5, 2013 is the 11^th anniversary of my mother’s death. I am so glad that she had the choice to request a medication to hasten her death when life became unbearable.  Mom was 90, living in Oregon, dying of cancer and on hospice, but her pain could not be controlled.

She was a quiet, private, shy person and didn't talk about herself, but it was very clear she wanted to die. I cried when I first heard her tell her doctor she wanted to die. Mom was comforted by my being there and we were able to share some quality time together. When my brother arrived Mom welcomed him with open arms and a big smile.

I sat at her bed the night before and when I put my head down on the bed she said, “Adrienne, don’t cry.  I am alright!” I also head her practice for the next day saying “I love you all”.  In the morning after quickly drinking the medication she had a little smile on her face before becoming unconscious and dying.  It was a very profound and positive experience.   She died peacefully at home surrounded by her two children, their spouses,  her minister and two Compassion in Dying (now Compassion & Choices) volunteers. And, best of all she was no longer in pain!

My brother and I have discussed that this may have been one of the few times she really did something for herself. Thank you all so very much for your work toward giving New Mexicans this choice to have some control at the end of their lives.  It can be a great comfort to the family and friends too!

Very Sincerely,
Adrienne Dare - Silver City New Mexico

This letter was submitted to the ACLU of New Mexico and published with permission of the author. The ACLU of New Mexico and Compassion & Choices filed a lawsuit in 2012 against the State of New Mexico, asking the courts to affirm that physician-aid-in-dying for mentally competent, terminally ill patients is permissible under New Mexico law.