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As New Mexico Attorney General punts on marriage equality, another lawsuit is filed

Marriage equality

By Jacob CombsNew Mexico state seal

Yesterday, New Mexico Attorney General Gary King announced in a press conference his determination that New Mexico law is unclear as to whether marriage equality is prohibited or allowed in the state, cautioning county clerks against issuing marriage licenses to same-sex couples and calling for the courts to definitively settle the issue.  From the Albuquerque Journal:

“We conclude that gay marriage is not currently authorized under New Mexico’s statutory law,” says a summary of legal research provided by King’s office after his news conference in Albuquerque.

However, King also said, “We feel like there is a significant issue relating to our equal-protection clause and whether or not the statute would withstand constitutional scrutiny. …:

“I think the answer to that will come through the courts,” King told the news conference.

During the conference, King stressed that he personally supports marriage equality.  “I believe that it’s inappropriate for the state to prevent same-sex couples from sharing in the rights that opposite-sex couples have,” he told reporters.  “If I had the authority to overrule the statutory scheme that is out there, I’d certainly consider doing that.”  But he reiterated that such authority “resides in the Legislature and the courts.”

The New Mexico Constitution’s definition of marriage is gender neutral, and the state is the only jurisdiction in the country without  laws that explicitly recognize or disavow same-sex couples’ unions.  However, the marriage license applications that are used by the state’s county clerks do contain blanks for ‘bridge’ and ‘groom,’ leading to Attorney General King’s determination that the state’s policy was inconclusive.

Just a few hours after the press conference, Alexander Hanna and Yon Hudson, a gay couple from Santa Fe, filed a lawsuit against Santa Fe County Clerk Geraldine Salazar for denying them a marriage licenses earlier in the day.  “We believe that the clerk, like other public officials in New Mexico, supports the issuance of marriage licenses to all loving couples who wish to get married,” Kate Ferlic, a lawyer for the couple, told The New York Times. The lawsuit, she said, “is meant to be the means by which they get the legal clarification they need to proceed with issuing licenses.”

The new lawsuit is the second to be filed this year challenging New Mexico’s lack of marriage equality.  In the first case, brought on behalf of two lesbian couples, one from Santa Fe and another from Aluquerque, the National Center for Lesbian Rights (NCLR) and the ACLU of New Mexico argue that the New Mexico Constitution guarantees marriage equality on the basis of its due process and equal protection provisions, its equal rights amendment, which holds that “[e]quality of rights under law shall not be denied on account of the sex of any person,” and its prohibitions on discrimination on the basis of sexual orientation.  That case is known as Griego v. Oliver.

As the Santa Fe New Mexican explains, the complaint filed this week differs from the Griego complaint because it “asks a judge to compel the elected official to take an action required by the duties of her office.” Essentially, the challenge says that Salazar must grant the couple’s license because she is required to issue licenses to any couple that is eligible under New Mexico law, which does not deem same-sex couples ineligible.  The Griego complaint, on the other hand, centers on a civil rights violation.

The new case, according to Democratic state Rep. Brian Egolf, a lawyer who is representing the couple in court, could reach the state Supreme Court faster than the Griego challenge.

Earlier this year, the New Mexico House Voters & Elections Committee voted 7-4 against a bill that would have amended the state constitution to explicitly allow marriage equality.  The legislation had previously been approved by another House committee on a 3-2 vote.

You can read Hanna and Hudson’s legal complaint here, via the Santa Fe Reporter.  A copy of the legal research announced by Attorney General King’s office yesterday is available here, from the Albuquerque Journal.  Below the fold, you can watch a video of King’s press conference (h/t Towleroad).

AG bows out of same-sex marriage fight

3 Comments

  • 1. Two same-sex couples join&hellip  |  June 13, 2013 at 4:33 am

    […] we wrote late final week, New Mexico Attorney General Gary King announced in a press discussion his […]

  • 2. Equality On Trial »&hellip  |  August 27, 2013 at 6:17 am

    […] last month, after conducting a review of New Mexico state law, King announced in a press conference his determination that New Mexico law is unclear as to whether marriage […]

  • 3. Reine  |  April 15, 2014 at 1:25 pm

    Since the NM legislature won't do its job and protect all residents, I guess a lawsuit is the only recourse. I won't if they can do ballot measures in NM?

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