Last week, state Rep. Brian Egolf, D-Santa Fe, filed a lawsuit seeking to compel Santa Fe County to issue marriage licenses to same-sex couples. While it seemed like a hopeful step for some New Mexico couples, another group of would-be husbands and wives is still struggling for recognition: those seeking to tie the knot with prison inmates, deployed soldiers or anyone who can't personally visit a county clerk's office.
Restaurant manager and Albuquerque divorcee Jeanne Marsh, 45, has been trying to get the necessary paperwork for months. She had planned to exchange vows with state prison inmate Robert Gabaldon, 31, in May, but the couple's marriage is on hold. Gabaldon, a convicted armed-robber who violated parole conditions when he was re-arrested for shoplifting last year, can't appear in a clerk's office until after his expected release in September 2015.
Earlier this year, lawmakers approved Senate Bill 299, called the Marriage License Cleanup bill. The law—co-sponsored by state Sen. Daniel Ivey-Soto, D-Bernalillo, and state Rep. Zachary Cook, R-Lincoln, and signed by Gov. Susana Martinez—prohibits county clerks, in most instances, from issuing licenses to minors until both parents agree to the marriage. It also makes it illegal for clerks to issue a marriage license to anyone unless both parties are physically present. That requirement has created an obvious challenge for people like Marsh and Gabaldon.
"It's not like he can ask the warden for an hour off to go to the clerk's office," Marsh says.
The law doesn't take effect until this Friday, but SFR has learned county clerks around the state have been denying licenses to people like Marsh for almost four years.
"Who are they to do that?" Marsh wants to know. "They let people register to vote and cast absentee ballots without ever seeing them in person."
Bernalillo County Clerk Maggie Toulouse Oliver says it's not a fair comparison because voting is a constitutional right that falls under federal law.
Still, requiring both parties to be physically present hasn't always been the policy. In 1943, then-Attorney General Edward P Chase issued an opinion on marriage licenses. The case involved a woman seeking to marry a member of the 200th Anti-aircraft Regiment held captive in the Philippines; Chase determined the license could be issued.
After that, county clerks regularly issued licenses to one wedding party member as long as he or she had the other person's signature. But that has created legal liabilities for clerks who are ultimately responsible for determining the eligibility of couples to wed. Clerks quietly changed their policy during a New Mexico County Clerks' Affiliate group meeting in Socorro in 2009.
Unaware of the clerks' view, or the pending law, Marsh went online to find out what hoops she and her incarcerated groom-to-be would have to jump through. Gabaldon, meantime, talked to a prison chaplain at the Western New Mexico Correctional Facility in Grants. He learned that the chaplain could not perform the ceremony, and the couple agreed to pay another minister to officiate.
Everything seemed on track for a spring wedding. Marsh says she was excited after her first visit to the Bernalillo County Clerk’s office. An employee, she says, gave her a form and told her to have Gabaldon get it notarized. It wasn’t until she returned with the affidavit that another employee told her the forms she had weren’t current, and that Marsh wouldn’t be able to get a license unless Gabaldon appeared with her.
“It’s insane. I felt like they were having me jump through hoops for no reason,” Marsh says.
The couple still has a few options after Friday. Marsh could drive to El Paso and marry Gabaldon over the phone, because Texas allows proxy marriages. New Mexico would consider their marriage valid because the state recognizes marriages from other states (even same-sex marriages, according to a 2011 opinion by Attorney General Gary King).
But Marsh doesn’t want to do that.
“We want to stand face to face and say our vows in front of God. They’re making it impossible,” she says.
Ivey-Soto, a lawyer who also works as the Clerks’ Affiliate executive director, says clerks asked him to sponsor the law because judges, not clerks, have the discretionary authority to issue licenses by proxy. Ivey-Soto says he’s planning to work with the state Supreme Court to fast-track the new process.
Even after Gabaldon is released, the couple still faces at least one more hurdle. The owners of Marsh’s current apartment complex won’t allow parolees to live on their property.
But Marsh says she’s ready to move anyway. All she wants is to sign a new “lease on life” with Gabaldon.