City Attorney: Same-Sex Marriage Already Legal in NM

After a bruising battle for a Constitutional amendment to legalize same-sex marriage failed in the Legislature this past month, Santa Fe City Geno Zamora today issued a legal memo asserting that gay marriage is actually already legal under state law.---

Say what?!?

The logic goes like this: since New Mexico statute doesn't include gender in its definition of marriage, and since the state's equal rights laws prohibit discrimination based on sex—meaning marriage licenses can't be denied based on gender—and since New Mexico already recognizes same sex marriages from other states, same-sex marriage is already legal or, in the words of the press release, "same-sex couples are capable of contracting within the law and capable of marrying in the State of New Mexico."

Zamora's memo is the basis of a resolution Mayor David Coss and City Councilor Patti Bushee are sponsoring and urging City Council to pass.

"We're going to encourage New Mexico's county clerks to issue marriage licenses to same-sex couples," Mayor David Coss said at a press conference today.

Zamora's interpretation of New Mexico law allowing same sex marriage has some precedent. In 2004, Sandoval's then-County Clerk Victoria Dunlap, a Republican, came to the same conclusion. She announced that she would start issuing out marriage certificates to same-sex couples, licensing 64 of them over an eight-hour period before then-Attorney Patricia Madrid ordered her to stop.

But Zamora stressed that an opinion from current Attorney General Gary King recognizing same-sex marriages from other states falls in line with his legal analysis. Zamora also noted that Madrid's 2004 order to Sandoval County was an advisory letter, "which carries no weight in law, it just gave information to the Sandoval County clerk...to make her own decisions based on the advisory letter."

"No attorney general has issued an opinion on the issue of same-sex marriage in New Mexico," Zamora said.

Zamora said that the city hasn't yet talked with county clerks, who issue marriage licenses, and Coss added that the city is expecting some pushback on the measure.

Santa Fe County Clerk Geraldine Salazar tells SFR that she "won't be issuing [same-sex] marriage licenses because the law is not clear and does not give me the authority to do so."

Salazar, however, says she personally supports same-sex marriage.

"The laws need to change, and that's out of my authority," she says. "I'm not here to interpret whether something is moral or not moral."

For many at the press conference, the issue was personal.

"We are the last group that is allowed legally to be discriminated against," Bushee, who's openly gay, told the crowd. "It's uncalled for. It needs to change."

"My daughter is gay," Coss said. "She has a partner who is a lovely woman, and as a dad, I'd just like to walk her down the aisle some day. And I'll never get to do that if we don't move on these issues in Santa Fe."

UPDATE:

released a statement this afternoon affirming its agreement with Zamora yet warning that same-sex marriage will ultimately be up to the courts to decide:

"Committed, loving same-sex couples deserve the same dignity and respect as opposite-sex couples, and this truth is already reflected in our state law," ACLU-NM Executive Director Peter Simonson said in a statement. "We believe that the current New Mexico Constitution and the state marriage statute provide same-sex couples the same marriage rights as opposite-sex couples. However, the right of all New Mexicans to marry should be clear and explicit.

The courts will need to provide some definitive guidance on this matter.

"

Here are Zamora's four main legal points:

1. New Mexico's marriage laws aren't defined between a man and a woman.

2. Marriage licenses cannot be denied under state law based on the sex of the couple. The only instances when they can be denied is if the couple are close relatives or when one of them is a minor.

3. Discrimination against same sex couples is a violation of the New Mexico Equal Rights Amendment.

4. New Mexico already recognizes the validity of same sex marriages in nine other states as well as Washington DC.

Read Zamora's memo and the city resolution below:

Santa Fe Reporter