High court hears arguments for statewide marriage equality after county clerks have issued 1,500 licenses to same-sex couples


MAKING IT LEGAL | Dallas couple Jerrett Morris and Jef Tingley were in Las Cruces in August when a county clerk started issuing marriage licenses, and they decided to get married. They are among the 1,500 same-sex couples who have received licenses in the state.


BARRY MASSEY  |  Associated Press

SANTA FE, N.M. — New Mexico’s highest court stepped into the fray over marriage equality on Wednesday, with the state attorney general and gay rights advocates urging justices to order county clerks statewide to allow the unions.

The Supreme Court heard from lawyers in a case that could determine whether same-sex marriage is legal across New Mexico. The five justices will issue a decision later.

At issue is an Albuquerque district judge’s ruling in late August that denying marriage licenses to gay and lesbian couples is unconstitutional.

County clerks statewide have asked the justices to clarify state law because eight of the 33 clerks are issuing marriage licenses to same-sex couples.

Their lawyer, Daniel Ivey-Soto, told the justices a uniform rule is needed.

“We have county clerks who are truly struggling with this issue on a daily basis,” he said.

To date, he said, nearly 1,500 same-sex licenses have been issued in New Mexico.

The state doesn’t explicitly prohibit or authorize same-sex marriage. However, the marriage laws  — unchanged since 1961 — include a marriage license application with sections for male and female applicants. There also are references to “husband’’ and “wife.’’

The current and previous state attorneys general have said the law effectively prohibits same-sex marriage. But Attorney General Gary King, a Democrat, contends such a prohibition is unconstitutional. King’s office defended the Albuquerque judge who ordered marriage licenses be granted to same-sex couples in two counties.

Fourteen other states and the District of Columbia allow for same-sex marriage either through court rulings, legislation or voter referendums.

The New Mexico case has drawn attention from national activists on both sides of the issue.

The American Civil Liberties Union and the National Center for Lesbian Rights represented same-sex couples in the case. They contend same-sex marriage must be allowed because of constitutional guarantees of equal protection under the law and a state constitutional prohibition against discrimination based on sexual orientation.

“Today is a historic moment in the history of New Mexico because today this court is given the opportunity to give credence to the notion of equality under the law is what New Mexico is about,” lawyer Maureen Sanders, who represents same-sex couples, told the justices.

A lawyer for a group of nearly two dozen former and current legislators — all Republicans except one — urged the justices to declare that marriage is between a man and woman.

“By redefining marriage to be a genderless institution, there is no longer an inherent link between procreation and marriage,” said James

Campbell, an Arizona attorney for a conservative Christian law group called Alliance Defending Freedom.

He said the Legislature — not the court — should decide the social question of same-sex marriage.

New Mexico courts have become a battleground over same-sex marriage in the past two months after the Dona Ana County clerk independently decided to start granting marriage licenses to same-sex couples. Seven other clerks followed, some in response to orders by lower courts.

Proposals to ban same-sex marriage have failed in the Democratic-controlled Legislature over the years as well as measures to establish domestic partnerships for same-sex couples.

A proposed constitutional amendment to allow same-sex marriage, which would have required voter approval, died earlier this year in a legislative committee.

State Sen. William Sharer, a Farmington Republican, said a constitutional amendment will be needed to resolve the marriage equality issue regardless of the outcome of the court case.

“No matter what their decision is the issue will not be settled until the people speak,” Sharer said after the hearing.

“It doesn’t matter how they rule here today, one side or the other will go back to the people and demand a new decision,” he said.

Meanwhile, Hawaii could begin issuing licenses and performing ceremonies for gay couples on Nov. 18 if a bill passes during special session next week.

A Senate draft of the bill to be considered starting Monday says couples would be able to obtain licenses and be married the same day.

The draft posted Tuesday presents same-sex marriage as an equal rights issue, rather than a marriage issue. It changes sections in state law relating to marriage, marriage benefits and divorce.

The Legislature has begun accepting testimony on the bill, which will be introduced Monday and immediately referred to the Judiciary Committee.

Lawmakers and advocacy groups have pressed the issue since the summer, following two U.S. Supreme Court rulings seen as wins for same-sex marriage proponents. Gov. Neil Abercrombie called the special session.

Oskar Garcia contributed to this report.

This article appeared in the Dallas Voice print edition October 25, 2013.

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