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Ludovic Bertron

Egolf Firm Petitions High Court On Same-Sex Marriage Case

The law firm of state Rep. Brian Egolf, D-Santa Fe, is now compelling the state Supreme Court to weigh in on same-sex marriage

June 27, 2013, 2:00 pm
By Joey Peters

Just one day after two historic same-sex marriage rulings at the federal level, the law firm of state Rep. Brian Egolf, D-Santa Fe, today petitioned the state Supreme Court to compel the Santa Fe County Clerk Geraldine Salazar to issue a marriage license to a local same-sex couple.

The petition comes just weeks after the Egolf Ferlic Day law firm issued a similar writ of mandamus to the First Judicial District Court. Egolf, who says the timing of his latest petition just after yesterday's historic US Supreme Court rulings striking down the federal Defense of Marriage Act and California's Proposition 8 is "coincidental," cites three main components to his argument: the existing state marriage statute, the state's Equal Rights Amendment and the state's equal protection clause.

"The idea is we’ve got clients that want to get married," Egolf says, referring to local residents Alexander Hanna and Yon Hudson. "They are asking the state to recognize their fundamental right to be treated equally and fairly."

The state Supreme Court isn't required to take up Egolf's petition, but he says if they do it could significantly speed up the process that could clarify whether his clients are allowed to get married.

"There's no question it meets a matter of great public concern," Egolf says of the petition.

The petition contains arguments in the vein of Santa Fe City Attorney Geno Zamora's memorandum in March which stated that existing state law makes same-sex marriage already legal in New Mexico. Yet earlier this month, another prominent Democrat, state Attorney General and 2014 gubernatorial candidate Gary King, issued his own memo disagreeing with Zamora's legal arguments.

One of Zamora's main legal points was that New Mexico's marriage statute is gender neutral. In other words, state law doesn't specifically identify that marriage must be between a "man" and "woman."

But King, who personally supports same-sex marriage, wrote that because the marriage statutes were originally written in the 1860s—eons before the LGBT community became accepted by mainstream society—it's highly unlikely that the intent was to allow same-sex marriage by law. Egolf, on the contrary, maintains that New Mexico courts traditionally look at the plain language of a statute and not its original intent when making decisions.

"What the folks were thinking in Territorial Legislature doesn’t fly," he says.

Another line of disagreement between Egolf's and King's perspectives hinges on a portion of state law that outlines how marriage certificates should be written. State statute provides a sample marriage license application that provides portions for a male and female to fill out. King uses this to conclude that "the proper interpretation of the entire [statutory] scheme is that the legislature intended to limit marriage to opposite-sex couples."

Egolf, however, notes that the sample form includes a requirement for the married couple to set the date for their first premarital physical exam, which is not enforced by law.

"If you're looking at the form, it's obvious that [it's] not substantive law," Egolf says.

Photo by Ludovic Bertron
View the petition to the state Supreme Court below:

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