Developing: Santa Fe officials urge same-sex couples to wed, saying New Mexico law already allows marriage equality
March 19, 2013
At a press conference earlier today, Santa Fe Mayor David Coss, City Councilor Patti Bushee and City Attorney Geno Zamora announced that New Mexico law can be interpreted as allowing same-sex couples to obtain marriage licenses, and that a resolution recognizing marriage equality will be introduced at the next city council meeting, on March 27.
From Zamora’s legal opinion:
“New Mexico’s statutory definition of marriage is gender-neutral. Since New Mexico does not define marriage as between a man and a woman, New Mexico does not prohibit same-sex marriage, New Mexico already recognizes same-sex marriages from other states, and the New Mexico Constitution requires equal treatment on the basis of sex, same-sex marriage is permitted in New Mexico.”
In her draft resolution, Patti Bushe writes that “under New Mexico law, same-sex marriage is legal in our State and … our State’s citizens have the right to marry the partner of their choice.” The resolution goes on to state that the city council “strongly encourage[s] New Mexico’s County Clerks to follow state law and issue marriage licenses to loving, committed couples who have the right to marry the person that they love, including those of the same gender.”
“It’s about time someone made a legal argument for equality in New Mexico,” Pat Davis of ProgressNow New Mexico said in a statement. “Just this month, a Republican Senator publicly came out for his son’s right to marry, Hillary Clinton endorsed full equality and the Supreme Court is prepared to hear landmark arguments on DOMA and marriage. It’s time New Mexico join the ranks of the progressive states and stand up for loving, committed couples who want nothing more than to be treated the same as they already treat their neighbors.”
Just last month, the New Mexico House Voters & Elections Committee voted 7-4 to reject a bill that would have amended the state constitution to allow for marriage equality. That legislation had successfully passed a previous committee by a 3-2 vote.
The announcement by Santa Fe officials that their city may call for New Mexico’s county clerks to provide marriage licenses to same-sex couples is reminiscent of a similar situation in San Francisco in 2004, when then-Mayor Gavin Newsom directed the clerk of the City and County of San Francisco to issue licenses to gay and lesbian couples. San Francisco is a consolidated city-county (meaning the boundaries of the two are the same and that both operate effectively as one jurisdiction), while Santa Fe is not. The California Supreme Court later annulled the marriages Newsom authorized, ruling that they were provided in violation of state law. New Mexico, however, has no state law explicitly banning marriage equality the way that California did in 2004.
EqualityOnTrial will have more on this story as it develops. The full legal opinion and resolution, via Scribd, are available after the jump, along with updates on this story.
UPDATE (3:30 p.m. Eastern): Some more explanation from ProgressNow New Mexico as to the legal conclusions the Santa Fe city attorney came to in his opinion:
- New Mexico’s laws do not define marriage as between a man and a woman, the definitions are gender-neutral,
- A statutory list of prohibited marriages does not list same-sex couples;
- Same-sex marriages from other states are already recognized by New Mexico law;
- To discriminate against same-sex couples would violate the New Mexico Constitution which requires equality under the law regardless of sex.
In my mind, Santa Fe’s announcement today is most likely an attempt to put the marriage equality issue at play in the New Mexico judiciary. Because of the failure of marriage equality legislation in the state House of Representatives, any legislative push for equal marriage rights this year is effectively dead. In his opinion, Geno Zamora lays out an intriguing argument for marriage equality under current law for any same-sex couple in the state. Although the resolution being proposed to the city council would only reflect the opinion of Santa Fe’s leadership, it would likely be challenged in state court, which could lead to a ruling legalizing marriage equality statewide. In essence, the Santa Fe leadership is setting the city up to be a test case that could lead to marriage equality for residents in the state’s other cities and counties.
UPDATE 2 (4:15 p.m. Eastern): Chris Johnson of the Washington Blade points out that Santa Fe County Clerk Geraldine Salazar told the Santa Fe New Mexican she will not be able to issue marriage licenses to same-sex couples until the state’s law is clarified:
“I would love to be able to issue marriage licenses (to same sex couples) but under the current law, I feel I’m not free and clear to do so. The Legislature creates the laws and the judges interpret the laws and I as a county clerk do not create or interpret laws. And I feel that my oath of office does not allow to me act counter to the laws of New Mexico.”
(In addition, this post was updated above to explain the differences between marriage law in New Mexico and California’s laws in 2004.)
[scribd id=131273806 key=key-2ekih9nn5m43ht006wz6 mode=scroll]