King had previously said he could not issue an opinion on whether same-sex marriage was legal in New Mexico because several couples had filed lawsuits, but the Court then asked him to respond. He actually argues the Court does not have jurisdiction to order county clerks to issue marriage licenses and thus should reject the suits, but also asserts that a constitutional argument would stand. In fact, King outlines a rationale for applying heightened scrutiny to sexual orientation:
New Mexico’s guarantee of equal protection to its citizens demands that same sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens. […]
There is no doubt that… the New Mexico Constitution requires the State to treat equally any of its citizens seeking legal recognition of their marriage, and that any statutory scheme interfering with that guarantee of equality is flatly unconstitutional.
The city of Santa Fe has already approved a resolution endorsing marriage equality. There are also 64 same-sex couples who married in New Mexico when a clerk determined the law did not forbid it in 2004 — who are presumably legally married and remain so.