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ACLU, NCLR file marriage equality challenge on behalf of two New Mexico lesbian couples

Marriage equality Marriage Equality Trials

By Jacob Combs

The ACLU of New Mexico and the National Center for Lesbian Rights (NCLR) filed a lawsuit yesterday in an Albuquerque district court on behalf of two lesbian couples who sought and were denied marriage licenses by the Bernalillo County Clerk.  The couples’ lawsuit contends that New Mexico’s marriage laws and the New Mexico Constitution contain no explicit ban on marriage rights for same-sex couples, and that marriage equality should be recognized in the state.

The new lawsuit, Griego v. Oliver, was filed in New Mexico’s Second Judicial District Court by Rose Griego and Kim Kiel of Santa Fe and Miriam Rand and Ona Porter of Albuquerque.  Griego and Kiel have been together for eight years, and experienced firsthand the challenges of a lack of state recognition for their union when Griego was hospitalized and Kiel was denied all information on her condition in the hospital until Griego’s family arrived.

Rand and Porter have been together for 25 years and raised three children together.  One of their daughters suffers from multiple sclerosis, so Rand and Porter have adopted her 14-year-old daughter but face legal uncertainty because their relationship is not recognized by the state.  When the two women’s mothers’ health deteriorated, they resorted to pretending they were sisters in order to make mutual decisions about care and visitation for their loved ones.

As the couples’ complaint points out, the New Mexico Constitution guarantees all citizens the rights of due process and equal protection and holds that “all persons are born … with certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty … and of seeking and obtaining safety and happiness.”  In addition, the state constitution contains what is known as an ‘equal rights amendment’ which reads, “[e]quality of rights under law shall not be denied on account of the sex of any person.”  New Mexico law also prohibits discrimination on the basis of sexual orientation.

The couples’ suit argues that New Mexico’s lack of marriage equality violates the New Mexico Constitution on five counts:

  • 1) It denies same-sex couples equal protection under the law and discriminates on the basis of sexual orientation.
  • 2) It violates the state constitution’s Equal Rights Amendment by discriminating on the basis of sex.
  • 3) It denies same-sex couples’ due process rights “to marry, to privacy, to freedom of intimate association, and to other fundamental liberties”
  • 4) It deprives couples of their right to freedom of speech and expressive association.
  • 5) It violates the state constitution’s provision regarding the “natural, inherent and inalienable rights” of all citizens to “seek[] and obtain[] safety and happiness.”

In terms of judicial remedy, the complaint asks the state court to rule that any refusal of marriage licenses to same-sex couples in New Mexico is unconstitutional and to direct county clerks to authorize the issuance of licenses to all couples regardless of sexual orientation.

The Griego lawsuit comes just days after Santa Fe Mayor David Coss, City Councilor Patti Bushee and City Attorney Geno Zamora announced in a press conference that New Mexico’s laws, as written, can be interpreted as allowing same-sex couples to obtain marriage licenses, and that a resolution calling for marriage equality will be introduced at the next city council meeting, on March 27.

A day after the press conference, Bushee released a statement that read, “If you are planning to go to a county clerk’s office to apply for a marriage license; or, if you go to a county clerk’s office and are denied a marriage license, please coordinate your efforts by contacting” the ACLU of New Mexico and Equality New Mexico, whose contact information was included. Coss, Bushee and Zamora’s press conference seems clearly intended to set up a court challenge like the one Griego, Kiel, Rand, Porter, the ACLU and the NCLR have filed.

The Griego lawsuit will likely make its way to the New Mexico Supreme Court.  The eventual outcome of the case could be affected by the Supreme Court’s decision regarding the constitutionality of California’s Proposition 8, which the Court will consider in oral arguments for the case Hollingsworth v. Perry next Tuesday.

1 Comment

  • 1. Thrawn  |  March 23, 2013 at 7:07 am

    Why is there all this talk about “same-sex couples’ rights”? Rights belong to individual citizens, not to couples. Every person has the same rights as every other, but where does it say that every relationship between two people has the same rights as every other relationship?

    The only individual rights spoken of here are “no discrimination on the basis of sex”, which surely is not relevant, since both sexes are being treated the same way, and “the right to seek and obtain safety and happiness”, which is all very well but doesn’t necessarily mean that people can have anything that they ask for.

    I’m happy to debate whether same-sex marriage would indeed bring people greater happiness, but let’s not gag that debate and replace it with claims about fundamental rights being violated.

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