Pride in Limbo

The legal confusion about same-sex marriage

Last week, Santa Fe City Attorney Geno Zamora made headlines by announcing that same-sex marriage is legal in New Mexico, and urging county clerks to begin issuing marriage licenses to same-sex couples.

But accountant Donald Stout and his husband, local chocolatier Chuck Higgins, have seen that kind of public statement before.

Stout and Higgins got married in Iowa, a state that recognizes same-sex marriages, in late 2011, just after Attorney General Gary King issued what appeared to be a landmark opinion on same-sex marriage. In that opinion, King maintained that all legally valid marriages from other states "shall be likewise valid in this state" and exist "in accordance with the laws in force in this state."

Yet because King's opinion isn't legally binding, little has changed. New Mexico's laws afford same-sex couples some rights, but with crucial exceptions—such as inheritance, or the right to make a medical decision on behalf of an incapacitated partner or spouse.

"There have been no changes at all as a result of the attorney general's opinion," Laura Schauer Ives, the legal director with the American Civil Liberties Union of New Mexico, tells SFR.

Stout knows all too well the burden of jumping through more legal hoops than heterosexual married couples.

Around the time of their marriage, they hired an attorney and spent thousands of dollars to allow each other the right to see each other's medical records in times of emergency—a right automatically granted to heterosexual married couples.

"Gay and lesbian couples have to go through a whole slew of additional work just to protect their relationship," Amber Royster, executive director of Equality New Mexico, tells SFR—a fact to which Stout can attest.

"Until the courts actually rule, we're still in a legal limbo area," he says. 

In New Mexico, same-sex couples occupy a gray area. Although the state technically recognizes same-sex marriages from other states, New Mexico's law still largely treats LGBT couples differently from heterosexual couples. And despite Zamora's push to get local authorities to begin erasing those differences, his authority only goes so far.

Like King's opinion, Zamora's legal memo is merely advisory. It relies in part on King's analysis and hinges on the fact that New Mexico's marriage statute doesn't specify gender, a result of the state Constitution's equal rights amendment.

Zamora says he started looking into the constitutionality of same-sex marriage in New Mexico when he was in private practice, years before he became city attorney. His memo comes on the heels of a failed attempt by state Rep. Brian Egolf, D-Santa Fe, to pass a statewide referendum on legalizing same-sex marriage. It also comes at a time when polling on the issue is largely favorable

"We felt [it] was very important to issue this at a time when the public debate was coming to a head nationally," Zamora tells SFR.

But he admits that his office can't legally instruct county clerks, who have the authority to issue marriage licenses, to start issuing same-sex marriage licenses—he can only encourage them to do so. Indeed, several clerks across the state have said they don't intend to issue marriage licenses to same-sex couples—including Santa Fe County Clerk Geraldine Salazar, despite her personal support for same-sex marriage.

"I don't have the legal authority," Salazar tells SFR, "and we need to understand that the Legislature creates laws and our judges interpret [them]. I, as a county clerk, do neither."

Last week, on behalf of Doña Ana County Clerk Lynn Ellins, state Rep. Bill McCamley, D-Doña Ana, asked King's office for an opinion on whether county clerks should issue marriage certificates to same-sex couples.

Phil Sisneros, the spokesman for the AG's office, says the office is working on a response "as expeditiously as possible."

Zamora adds that, in the meantime, county attorneys can give their county clerks direction on the marriage issue. (Santa Fe County Attorney Steve Ross did not return SFR's phone calls for this story.)

And other efforts are unfolding on the local level. For a long time, Santa Fe has offered employment benefits for same-sex partners of people who work for the city. City Councilor Patti Bushee is working on an ordinance to incorporate that practice into city law.

Bushee is also sponsoring a resolution to require the same standards from employers who have contracts worth $50,000 or more with the city, as well as other measures to encourage equal rights for same-sex couples.

In the meantime, it's mostly up to same-sex couples in New Mexico to challenge the law themselves. Both Stout and Higgins are planning to file taxes jointly—using King's opinion as ammunition—so that Higgins can qualify for a better insurance plan.

"We're both nearing retirement age," Stout, a certified public accountant, says.

And last week, the ACLU filed a lawsuit in Bernalillo County court on behalf of two same-sex couples seeking marriage in New Mexico. Although the lawsuit will likely address some of the confusion over same-sex marriage, a final ruling could take years.

Nationally, the US Supreme Court is weighing the constitutionality of the Defense of Marriage Act and California's Proposition 8, both of which restrict marriage rights for same-sex couples.

Stout says he married Higgins in part to make a political statement (Higgins, who owns his namesake chocolate store in Santa Fe, recently declared his candidacy for lieutenant governor).

"We thought, 'Let's go to Iowa, get married, and maybe we'll start challenging the status quo,'" Stout says.

That's true for many couples, who see the right to marry as much more than a legal question.

"At the heart of this is a couple being able to stand up and get the acknowledgment and respect that comes with marriage," Schauer Ives tells SFR. "Just that, in and of itself, is significant."

Stout says one of the biggest advantages of being married is introducing Higgins as "my husband" rather than the customary "my partner."

"It pushes the envelope and makes people think," Stout says. "Little things like that really raise consciousness [and] change people's attitudes."

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