What does the denial of the same-sex marriage petitions mean for New Mexico?

Yesterday the legal world was surprised by the Supreme Court’s denial of all seven petitions for certiorari challenging lower court decisions allowing same-sex marriage. SCOTUSblog has this roundup of news coverage and commentary on the denials.

So what does this mean for New Mexico? The answer is “not much.” Last year, when the New Mexico Supreme Court ruled in favor of same-sex marriage in Griego v. Oliver, its decision was based entirely on the Equal Protection Clause of the New Mexico Constitution, as I explained here.

State constitutions can provide greater rights and liberties than the United States Constitution. Thus, if SCOTUS takes up same-sex marriage in the future, and in the unlikely event that the Court decides that states do not have to allow it, that would have no effect on same-sex marriage in New Mexico.

By basing their challenge solely on the state constitution, New Mexico’s same-sex marriage advocates ensured that our state Supreme Court’s marriage decision would be immune to review by the Supreme Court of the United States. The only way to change the status of same-sex marriage here would be to amend the New Mexico Constitution.

I think the lesson here is to keep the New Mexico Constitution in mind when deciding what claims and defenses to assert, even in “ordinary” civil litigation. In the right case it can be a powerful tool with which to accomplish your client’s goals.

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