FedSoc Blog

New Mexico Supreme Court Legalizes Same-Sex Marriage


by Publius
Posted December 19, 2013, 2:48 PM

Bloomberg News reports:

New Mexico, the only state without a law specifically allowing or prohibiting gay marriage, was barred by its supreme court from denying same-sex couples the right to marry.

New Mexico’s high court issued its decision today in response to a request by county clerks to clarify their obligations after a judge in August ordered the clerks of Bernalillo County and Santa Fe County to issue marriage licenses to couples without regard to their gender or sexual orientation.

“We conclude that although none of New Mexico’s marriage statutes specifically prohibit same-gender marriages, when read as a whole, the statutes have the effect of precluding same-gender couples from marrying and benefitting from the rights, protections, and responsibilities that flow from a civil marriage,” the court said in its ruling. “We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.”

Judge Alan Malott in Albuquerque ruled in August that denying gay couples the right to marry violates the New Mexico constitution. State rules require couples wishing to marry to obtain a license and doesn’t define or limit the definition of “couples” to heterosexual, he said.

A group of New Mexico lawmakers filed a brief with the Supreme Court arguing that the state’s marriage statutes permit marriage only between a man and a woman.
‘Unbroken Line’

“The intent of the legislature, a comprehensive reading of all the statutes addressing marriage, this court’s treatment of marriage, the consensus of past and present New Mexico attorneys general, and an unbroken line of precedents from other jurisdictions all confirm that the marriage statutes in this state permit marriage only between one man and one woman,” the lawmakers said in their filing. . . .

At Bench Memos, Ed Whelan provides some intial commentary:

In a unanimous opinion issued today in Griego v. Oliver, the five justices of the New Mexico supreme court have ruled that the New Mexico constitution requires that “same-gender couples” be allowed to marry.

On a quick first read, it appears that the court’s mode of reasoning follows the same adventuresome inventiveness of other state courts that have gone this route. Among other things, the reader will learn that “the members of the LGBT community do not have sufficient political strength to protect themselves from purposeful discrimination” and are “‘relegated to such a position of political powerlessness’” that it is the court’s role to deliver them victory on the fundamental question of marriage.

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