What New Mexico's gay marriage ruling means for other states

The Land of Enchantment becomes the 17th state to allow gay marriage — but don't expect others to follow its lead

New Mexico
(Image credit: (AP Photo/Juan Carlos Llorca))

New Mexico's Supreme Court on Thursday ruled that it was unconstitutional to deny marriage licenses to same-sex couples.

In a unanimous decision, the state's highest court ruled that the right for same-sex couples to wed was guaranteed under the equal protection clause of the state constitution, which says that "equality of rights under law shall not be denied on account of the sex of any person." As a result, the Land of Enchantment became the 17th state, plus the District of Columbia, to legalize same-sex marriage.

On a practical level, the ruling adds one more state to the list of those where gay couples can legally wed, and it could lend weight to efforts at legalizing same-sex marriage elsewhere. But though the court cited the Supreme Court decision that struck down part of the federal Defense of Marriage Act in its own opinion, it also noted that its interpretation of that and other rulings did not necessarily mean other states should follow suit. The court wrote:

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.


Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Interpreting our statutes to authorize committed same-gender couples to enter into civil marriage will grant them the rights and privileges available to opposite-gender married couples in approximately one thousand statutes and federal regulations that refer to a person's marital status, thereby avoiding a constitutional challenge on that basis [PDF]

Yet at the same time, the court hedged that it was interpreting the law given New Mexico's unique circumstance.

New Mexico is the only state with no law legalizing or barring same-sex marriage. It was because of that ambiguity that one county began issuing marriage licenses to gay couples a decade ago, a practice that lasted just a single day until the state's then-Attorney General stepped in and stopped it.

Until Thursday, New Mexico remained in a weird limbo, with gay marriage de facto, though not legally, banned. So when same-sex couples fought for equal rights in court, they were not, unlike their counterparts in other states, challenging an existing ban.

More from the ruling:

When fundamental rights are affected by legislation, the United States Supreme Court has applied strict scrutiny when determining whether the legislation is constitutional... However, regarding marriage, the United States Supreme Court does not demand "that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny." …

We conclude from the United States Supreme Court's equivocation in these cases that whether the right to marry is a fundamental right requiring strict scrutiny is a question that remains unanswered. We do not need to answer this question here because Plaintiffs prevail when we apply an intermediate scrutiny level of review under an equal protection analysis. [PDF]

In other words, the high court hasn't said there is a definite right for gay couples to wed, so individual states are left to make that determination on their own. And in this case, the state court said gay marriage should be legal not because of federal policy, but because of New Mexico's own constitution.

In that way, the ruling is more limited than one to come out of New Jersey — the only other state to legalize same-sex marriage via the courts since the Supreme Court's DOMA ruling — earlier this year. In that case, a judge ruled that New Jersey, by extending benefits to gay couples in civil unions but then preventing those couples from marrying, had created an untenable two-tiered system.

"If the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the state," New Jersey Superior Court Judge Mary Jacobson wrote in September.

That ruling more broadly reads as a blueprint for lawsuits in other states: Denying same-sex couples the right to wed will increasingly prove problematic and run counter to federal policy.

So though the New Mexico ruling should lend some encouragement to activists pushing to legalize same-sex marriage in other states, it does not in itself offer an argument for doing so.

Continue reading for free

We hope you're enjoying The Week's refreshingly open-minded journalism.

Subscribed to The Week? Register your account with the same email as your subscription.

Jon Terbush

Jon Terbush is an associate editor at TheWeek.com covering politics, sports, and other things he finds interesting. He has previously written for Talking Points Memo, Raw Story, and Business Insider.