Marriage Debate Rages

Courts, clerks and a flock of lawyers disagree about meaning

Proponents say two recent court rulings and decisions by county clerks have paved the way for marriage equality in New Mexico, while opponents argue the legality of same-sex marriage isn't settled—and should be put up to voters.

On Monday, Rev. Hollis Walker declared Kim Kiel and her partner, Rose Griego, married by the authority vested in her by the church and finally by the state of New Mexico—with emphasis on finally.

At press time, Santa Fe was among five New Mexico counties issuing marriage licenses to same-sex couples. The certificates were also being issued in Bernalillo, Doña Ana, Valencia and San Miguel counties.  

But a group of Republican legislators is denouncing the actions of a county clerk and two District Court judges who ordered the issuance of same-sex marriage licenses in two of the state's largest counties. The GOP lawmakers, led by Sen. Bill Sharer, R-Farmington, have indicated they plan on filing a lawsuit to contest the actions. The GOP lawmakers argue the issue is one for the Legislature to decide—although efforts at the Roundhouse to both permit and prohibit same-sex marriage, and to put the issue before voters have failed in recent years. Republican Gov. Susana Martinez has said she wants the issue on a future ballot, and the state Republican Party agrees.

"Our legal team continues to review how to stop the usurping of the legislative function by some district court judges in regards to marriage in the state; and it continues to review how to stop the lawless actions of the Doña Ana County Clerk," Sen. Sharer said in a statement. "It is up the New Mexico State Legislature, with the consent of the Governor of New Mexico, to make laws and for county clerks and district court judges to abide by them. They do not make the laws."

That hasn't stopped hundreds of same-sex couples from getting married in the last week.

In Santa Fe, First Judicial District Court Judge Sarah Singleton on Friday ordered Santa Fe County Clerk Geraldine Salazar to grant marriage licenses to same-sex couples. A same-sex marriage supporter, Salazar previously denied a marriage license for two men, which spurred them to petition Judge Singleton to compel Salazar to issue the license.  

On Tuesday, New Mexico's largest county, Bernalillo, began issuing licenses to same-sex couples after the Second Judicial District Court Judge Alan Malott ordered the county clerk to do so. Later in the day, clerks in both Valencia and San Miguel counties said they would issue the licenses.

Statutes dealing with marriage have been around since before New Mexico was a state, yet officials like the Doña Ana County Clerk have been using the refrain that the statutes are "gender neutral." Santa Fe City Attorney Geno Zamora agreed earlier this year with that assessment in his own analysis, released just before the City Council passed a resolution urging county clerks to issue marriage licenses.

But Attorney General King, the state's top law-enforcement officer, disagrees with that interpretation. His analysis points out that New Mexico's marriage law was created during the Civil War-period Territorial Legislature. (Courts, when interpreting a statute, often must consider the intent of the public body that created the statute.)

"Given this historical context," King's office concluded, "the likelihood that the Territorial Legislature contemplated, much less authorized, same-sex unions is highly unlikely."

Moreover, King's office considered the entire "statutory framework" of marriage in New Mexico. While the statute defining marriage might be gender- neutral, other marriage statutes are gender-specific. The state law containing model marriage application forms, for instance, "contains sections for a 'male' and a 'female' applicant," King's office reasoned.

Still pending before the state Supreme Court is a petition asking the court to consolidate all related gay-marriage litigation into a single District Court case that could then be reviewed and certified by the higher court. Brian Egolf, the attorney who filed the case, says he would "be really surprised if they determined that  the state constitution does not require marriage equality."

For her part, newlywed  Kiel says she is not concerned about about her marriage license being revoked. The couple was a party to a lawsuit filed by the American Civil Liberties Union in Albuquerque that led to the Second Judicial District Court decision, which concluded that the refusal to issue licenses to same-sex couples violates the equal protections clause of the state's constitution.  

"I think if there is a challenge to the ruling, that's not necessarily a bad thing," she says. "If it goes to the [state] Supreme Court level, I think that would be good in the long run."

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