On April 9, 2024, the New Mexico Supreme Court (NMSC) issued administrative order, No. S-1-AO-2024-00016, which orders that all New Mexico court staff must use an individual’s “personal pronouns.” This post explores why that is a problem. A copy of the administrative order is available, below.
1. The NMSC’s court order is a violation of the compelled speech doctrine.
Part of an individual’s right to free speech under the First Amendment is a related right that the government cannot force an individual to speak certain speech. This right is known as the “compelled speech doctrine.”
According to the Free Speech Center at Middle Tennessee State University, “The compelled speech doctrine sets out the principle that the government cannot force an individual or group to support certain expression. Thus, the First Amendment not only limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.” Free Speech Center
The right against compelled speech is a well established constitutional protection. Obviously, for the government to force individuals to say anything raises moral, ethical, and practical considerations, not to mention being unconstitutional under the First Amendment.
Despite this, the NMSC’s administrative order does exactly that, it compels — literally orders — all New Mexico court employees to say an individual’s preferred “personal pronouns.”
2. The NMSC’s court order is an improper political statement
Courts have a general ethical and legal obligation to avoid political issues. This is known in the law as the “political question doctrine.”
According to the Legal Information Institute at Cornell Law School, the “political question doctrine is the rule that federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue…” Although this definition specifies “federal” courts, most state courts adhere to the same principle. Cornell Law
Although the definition above speaks to not presiding over cases that present political issues, there is a broader consensus that a court should not wade into political issues. Indeed, the entire doctrine of “stare decisis,” which requires courts to abide by past legal precedent, is a concept that helps ensure continuity and predicability in court decisions. On the other hand, political sentiment comes and goes like the wind. If a court were to follow the ever-changing political sentiment of a populace, it would be the very definition of mob rule. Instead, the federal and state constitution and bodies of law help ensure individual protections and liberties.
3. Personal Pronouns are an improper political issue for the NMSC to wade into
Personal pronouns can be defined as a political issue for several reasons. First, personal pronouns are a political issue because they are of recent invention and attention. Previously, there was almost complete consensus in society, the sciences, and even in politics as to two biological genders: man and women. Recently, however, certain groups and individuals in society have begun advocating for the use of personal pronouns. This recent advocacy speaks to personal pronouns becoming a political issue, in that people are advocating politically for their use.
Second, personal pronouns are a political issue because certain grounds and individuals in society are attempting to compel, or at a bare minimum, encourage the use of personal pronouns. This use of power to compel or force the use of personal pronouns is de-facto evidence that advocating for their use has become a political issue.
Third, personal pronouns are a political issue because certain groups or individuals are attempting to use political means to mandate their use. Hence, the NMSC order that mandates their use for court staff. Which raises the question, who recommended or approached the NMSC to advocate for the mandatory use of political pronouns?
4. That the NMSC has seen fit to wade into a politically-charged issue like mandatory personal pronouns speaks to its increasing political corruption
Why did the NMSC see fit to literally *order* its court staff to use someone’s preferred pronouns? Who lobbied the NMSC for this?
The NMSC’s written order mandating the use of personal pronouns was not by accident. The NMSC’s order is against the compelled speech doctrine. Moreover, the NMSC’s wading into political issues is legally improper, and is dangerous, reckless, and inappropriate given the court’s obligation to remain impartial and fair adjudicators under the law. In other words, the NMSC should not succumb to every new political fancy, idea, or wave, because it threatens individual liberties.