Author: David B. Weisenfeld, XpertHR Legal Editor

December 23, 2013

The New Mexico Supreme Court has cleared the way for same-sex marriages to begin in the state effective immediately. On December 19, New Mexico's highest court unanimously held that it is unconstitutional to deny marriage licenses to gay and lesbian couples.

Writing for the state's highest court, Justice Edward Chavez noted that interracial marriages were once banned in many states until the US Supreme Court ordered an end to such discriminatory treatment. Along similar lines, Justice Chavez reasoned that same-gender couples have been subjected to a history of discrimination and violence.

Accordingly, the court found that barring individuals from marrying and depriving them of the rights, protections and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause of the New Mexico Constitution.

Interestingly, eight New Mexico counties had already issued more than 1,400 marriage licenses while this decision was pending. However, those couples nevertheless had remained ineligible to receive federal benefits because of lingering uncertainty over the law in New Mexico. The state's other 24 counties did not issue marriage licenses to same-sex couples while awaiting the court's ruling. The uncertainty has now ended.

With this decision, New Mexico has become the 17th state, plus the District of Columbia, to legalize same-sex marriage. Seven states in all have legalized same-sex marriage since the US Supreme Court's ruling in United States v. Windsor, (U.S. June 27, 2013), which struck down part of the federal Defense of Marriage Act (DOMA).

Four of those states - Hawaii, Illinois, New Jersey and New Mexico - have recognized gay marriages just since October. Hawaii and Illinois did so through legislation, while legalization came about in New Jersey via the courts, like New Mexico. The Illinois law will not take effect until June 1, 2014, but couples seeking an early marriage certificate there for medical reasons have been allowed to do so.

The other states to recognize same-sex marriage since the Windsor decision are Delaware, Minnesota and Rhode Island. Also, a number of federal agencies have extended marital benefits to same-sex couples who are lawfully married.

The Employment Non-Discrimination Act, which passed the Senate in November by a 64-32 vote, would make it illegal to fire or otherwise discriminate against someone because he or she is lesbian, gay, bisexual or transgender. President Obama supports the legislation, but it appears unlikely to pass the House where opponents have blocked the measure from coming up for a vote.