January 16, 2015

What will SCOTUS decision on same-sex marriage mean for NM?

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Wendy Foxworth faces her partner Paula Getz during a wedding ceremony in Albuquerque. Photo by Matthew Reichbach.

The United States Supreme Court announced on Friday that it would hear arguments on the question of same-sex marriage.

As of now, 36 states allow same-sex marriage and 14 states ban same-sex marriage. A series of decisions by federal appeals courts have struck down same-sex marriage bans in states across the country, leading to the upcoming U.S. Supreme Court hearing.

The decision will likely have no immediate effect on New Mexico.

At least, that’s the opinion of Maureen Sanders, an attorney who successfully argued in front of the state Supreme Court that New Mexico’s state constitution required same-sex marriages to be allowed.

As SCOTUSblog says, “The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.”

For more detail, see the SCOTUSblog post on the subject.

“The court could say as a matter of federal law ‘we’re not going to say that the 14th amendment requires states to allow same-sex marriages,'” Sanders told New Mexico Political Report in a phone interview. “But in New Mexico, the opinion we have is that New Mexico’s constitution requires that same-sex marriages be allowed.”

In other words, New Mexico’s same-sex marriage is allowed because of a decision based on the state constitution, not because of the U.S. Constitution.

“I don’t see any way that the Supreme Court would come out and say ‘Not only are bans OK, no state can have same-sex marriages,'” Sanders said. “I don’t see them ever doing that.”

At most, the effect on New Mexico would be opening the door for a future ban on same-sex marriages.

“They could say, ‘We’re telling you for once and for all that the federal courts don’t get involved in marriage. We want to leave it up to the states,'” she said. “That, I think, is where they may be headed.”

This would take a constitutional amendment, according to Sanders, because the state Supreme Court ruled the state constitution allowed same-sex marriages.

“You couldn’t do it by statute in my view,” she said.

In 2014’s legislative session, same-sex marriage opponent Bill Sharer, R-Farmington, introduced a constitutional amendment to ban same-sex marriage. The legislation did not receive a committee hearing before the end of the session.

He has not pre-filed similar legislation for the 2015 legislative session so far.