Prior to 2004, loving, committed same-sex couples in New Mexico were recognized only as roommates. They and their children had no real status as a family under state law. They were not allowed to marry or enter a civil union or enter a domestic partnership. They were considered "legal strangers" to each other. In 2004, one county clerk started to distribute marriage licenses to same-sex couples. However, in a matter of hours, the Attorney General issued an opinion that the licenses were not valid and that any couples who married would be forcibly divorced by the state.
Between 2004 and early 2013, the Legislature attempted to create civil unions through legislation. That failed. They tried to authorize a plebiscite to be held on election day in early 2014-NOV. If passed by the voters, it would amend the state Constitution to allow same-sex marriages. That also failed. Finally they tried to authorize a plebiscite on that day to amend the Constitution to ban same-sex marriage. That also failed.
The big breakthrough happened on 2013-JUN-26 when the U.S. Supreme Court (SCOTUS) handed down its ruling in Windsor v. United States. This found that the main section of the federal Defense of Marriage Act (DOMA) was unconstitutional. As originally written, It had prevented the federal government from recognizing any marriages by same-sex couples that had been legally solemnized in any state. This required the government to withhold the 1,138 federal protections and benefits from same-sex married couples that were routinely given to opposite-sex married couples. The court ruled that DOMA violated the Fifth Amendment of the U.S. Constitution's guarantee of equal liberty, and wrote inequality into federal law. Justice Kennedy wrote:
He also wrote:
He wrote that the purpose of the law was to impose a disadvantage and:
He concluded that:
The arguments and conclusion reached by SCOTUS in the DOMA decision triggered many subsequent lawsuits that challenged restrictions on same-sex marriage in individual states.
In New Mexico, this ruling by SCOTUS, coupled with the equality clauses in the U.S. Constitution, the lack of a ban on same-sex marriage in the state Constitution, and no clear ban within the state marriage statutes caused some elected state officials to reconsider whether such marriages should be made available. Lynn Ellins, the County Clerk of Dona Ana County in south central New Mexico began issuing marriage licenses to same-sex couples, starting on 2013-AUG-21. He said that he had reviewed state laws, and presumably the New Mexico Constitution, and had concluded that the:
Within days, the First Judicial District Court in Santa Fe county in north-central New Mexico issued an order that the Santa Fe county clerk start to issue marriage licenses to same-sex couples.
As of 2013-AUG-25, two court cases involving same-sex marriage are active in New Mexico's state court system.
By 2013-AUG-30, seven counties were issuing marriage licenses to same-sex couples. Three county clerks made this decision on their own. In four other counties four separate state District Courts ordered them to do so. An appeal to the five New Mexico Supreme Court was heard on OCT-23. Some commentators expect a ruling by mid-November.
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