New Mexico, a state that did not have a flat ban on same-sex marriage but also did not seem to allow it, must now permit such formal unions under the state’s constitution, the New Mexico Supreme Court ruled unanimously on Thursday.

Because the ruling is based on state law, not the federal Constitution, the decision is the final word for that state unless a constitutional ban were to be adopted.  With this ruling, New Mexico becomes the seventeenth state to assure marriage equality for same-sex couples.

Although the pace of recognition of marriage rights for same-sex couples had accelerated across the country lately, the New Mexico court said the fact that only a minority of the U.S. states have done so was proof that those couples “do not have sufficient political strength to protect themselves from purposeful discrimination.”  It found that homosexuals generally have been subjected to a prolonged history of discrimination based on their sexual identities.

Applying a middle level of constitutional analysis to the issue, the state court said that excluding same-sex couples from the legal right to wed violates the state constitution’s guarantee of legal equality.  The state constitution says that “all persons are born equally free, and have certain natural, inherent and inalienable rights,” including the right to seek and obtain “safety and happiness.”

It noted that none of the state’s marriage laws “specifically prohibits same-sex marriages,” but that those laws “when read as a whole…have the effect of precluding same-gender couples from marrying and benefiting from the rights, protections, and responsibilities that flow from a civil marriage.”

It added: “Same-gender couples who wish to enter into a civil marriage with another person of their choice and to the exclusion of all others are similarly situated to opposite-gender couples who want to do the same, yet they are treated differently.”  The court said its ruling would apply to same-sex couples “whether lesbian, gay, bisexual, or transgender.”

The court did not strike down any state law, but rather ordered that all provisions in those laws that refer to marriage or to marital partners should be understood as including “the voluntary union of two persons to the exclusion of all others” — period.

The decision did not specify a date on which same-sex couples could begin receiving marriage licenses.  It said it was simply ordering lower courts in the state “to mandate compliance with the holdings and rationale of this opinion.”  That appears to be a command that lower courts order county clerks across the state to grant such licenses.

A number of those county clerks, reacting to the Supreme Court’s decision last Term striking down on equality grounds a federal law denying federal benefits to same-sex couples, had begun issuing marriage licenses to same-sex couples.  A total of nearly 1,500 licenses had been issued.  Those actions by county clerks led to a speedy development of the case in lower state courts, and then before the state supreme court.

That court held a hearing in October, and then proceeded to work on its opinion.  The final opinion was written by Justice Edward L. Chavez, and was joined by the court’s four other justices, who noted simply that they joined that opinion.

The opinion gave the state the opportunity to come up with sufficiently strong reasons to justify excluding same-sex couples from marriage rights, but then found none of those could save that differing treatment.

The justifications were the now-familiar ones that opponents of same-sex marriage have been offering in many court cases — that confining marriage to unions of a man and a woman promotes the state’s interest in “responsible procreation,” that it also promotes “responsible child-rearing,” and that it protects the institution of marriage from dissolution by discrediting it as a life-long commitment.  The state, the state supreme court found, had never sought to justify the existing marital laws with any of those arguments.

In addition, the state court said that same-sex couples have demonstrated that they are capable of having families with children, that they are responsible parents, and that their unions will not affect anyone else’s marriage.

At its foundation, the state court said, the institution of civil marriage in the state is designed to promote stability in intimate relationships, and allowing same-sex couples to unite in marriage will contribute to that goal, and provide a stable home life for the children whom same-sex couples raise.

The opinion also made clear that the decision would not require any minister to perform marriages for same-sex couples if that violated the clergy’s religious beliefs, and would not require any religious organization to change its policies to admit same-sex couples.

Just as the U.S. Supreme Court has never ruled that same-sex couples have a free-standing constitutional right to get married, the New Mexico court said it would not attempt to answer that question in this case.  Instead, it relied upon the state constitution’s promise that state laws would treat people the same if they are similar in their characteristics and capacities.

Posted in Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, New Mexico allows same-sex marriage, SCOTUSblog (Dec. 19, 2013, 3:59 PM),