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Same-sex marriage (SSM) in New Mexico:

2011: Polls. 2013 Legislative activity fails.
2013: Court actions to legalize same-sex marriages.
2013: Writ of Mandamus with state Supreme Court.

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2011-JUN/DEC: Public Policy Polling (PPP) conducts SSM polls among New Mexico voters:

During 2011-JUN, a PPP poll had found that NM voters opposed legalizing SSM: 42% favored marriage equality; 48% were opposed; 10% had no opinion or didn't answer.

Six months later, in 2011-DEC, public opinion had flipped: 45% were in favor of SSM; 43% were opposed; 12% were undecided or didn't respond to the poll. A plurality of voters in the nearby states of Colorado and Nevada also support marriage equality.

Meanwhile, 78% of Democrats, 71% of independents and 41% of Republicans favored some form of state recognition of same-sex relationships, at least civil unions if not marriage for same-sex couples, for an overall support of about 67%.

Five-hundred voters were polled. The margin of error is ±4.4 percentage points. 1

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2013-JAN/FEB: Nonproductive activity in the State Legislature:

On JAN- 22, state Rep. Brian Egolf (D), introduced House Joint Resolution 3, to authorize a referendum on voting day in 2014-NOV. It would have amended the state constitution to clearly permit same-sex marriages. It also would allow religious institutions to discriminate against same-sex couples if they wish by refusing to marry them and by refusing to recognize their marriages legally solemnized by others, either in New Mexico or out-of-state. The House Consumer and Public Affairs Committee narrowly approved the Resolution by a vote of 3 to 2. Both of the Republicans on the committee opposed the Resolution 2 However, on FEB-21, the Voters and Elections Committee defeated the same resolution by a 7-4 vote.3All the Republicans on the committee joined with two Democrats to defeat the motion. The resolution did not proceed further.

On FEB-22, state Rep. Nora Espinoza, (R), and John Patrick Woods (R) introduced House Joint Resolution 4 to the House Consumer and Public Affairs Committee. It would have held a referendum in 2014-NOV to amend Article 20 of the state constitution to ban same-sex marriage. It would define marriage as a union involving one woman and one man.

During the Committee hearing, the Rev. Terry Brennan, a Catholic priest, said that marriage requires a man and a woman just like water needs hydrogen and oxygen. He said:

"They need each other to create life. Any denial of this is a denial of reality."

That is not the best of examples to use. If hydrogen referred to women and oxygen referred to men, then water (H2O) requires two women and one man -- a polygynous marriage.

However, in New Mexico as in the rest of North America, an increasing percentage of married opposite-sex couples are electing to not conceive children. Meanwhile, an increasing percentage of loving, committed same-sex couples are electing to use adoption, artificial insemination, or surrogate motherhood to introduce children into their families, even though the state government recognizes them only as "legal strangers" -- as mere roommates.

In contrast, Rev. Paul Davenport, a retired Presbyterian minister said that all loving couples should be able to marry. He said:

"It's just so basic it's almost embarrassing to say it. People are just people." 4

The committee failed to approve the resolution in a 2-3 vote on FEB-05. As is so common in other states, both Republicans voted in favor of the ban, while all of the Democrats voted against the ban. 4

The legislature thus completed a multi-year-long string of failures to legalize civil unions, to amend the constitution to legalize SSM, and to amend the constitution to ban SSM.

Legislators could eventually approve an amendment to the marriage act that would allow same-sex couples to marry. However, Gov. Susana Martinez (R) has promised to veto such a bill. There would be a near zero possibility that the Legislature could overturn such a veto. Due to legislative gridlock, it appears obvious to many commentators that the campaign to archive marriage equality should work through the courts.

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2013-JUL-03: American Civil Liberties Union of New Mexico (ACLI-NM) filed "writ of mandamus" with the New Mexico State Supreme Court:

On JUN-26, the U.S. Supreme Court handed down a ruling in the lawsuit Edith Windsor v. United States. The court declared that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. Their ruling stated that the federal act had identified same-sex couples who had been legally married in their state, had refused to recognize their marriages, and had denied them access to about 1,138 federal benefits and protections. These include eligibility for family medical leave, social security survivor’s benefits, access to health care for a spouse, immigration implications, exclusion from inheritance taxes, etc., all of which are routinely given to opposite-sex married couples.

This ruling has triggered many court actions seeking marriage equality in states throughout the U.S. New Mexico is one of them.

There are some same-sex couples in New Mexico who have married in another states. Their marriages are not recognized in New Mexico. They are now eligible to receive a few federal benefits, but most of them remain unavailable. To receive the full set requires that New Mexico recognize their out-of-state marriages. There are many other same-sex couples in New Mexico who would like to marry within their state.

The National Center for Lesbian Rights (NCLR) stated that:

"... the American Civil Liberties Union (ACLU) of New Mexico, ACLU national, the National Center for Lesbian Rights (NCLR), Albuquerque law firm Sutin, Thayer & Brown PC, and Albuquerque attorneys Maureen Sanders, Kate Girard, and Lynn Perls filed a writ of mandamus with the New Mexico State Supreme Court seeking a ruling on the issue of whether same-sex couples can marry in the State of New Mexico. The writ also asks the court to clarify that New Mexico respects the marriages of same-sex New Mexico couples who married in another state ..." 5

The writ allows the the plaintiffs to directly ask for a ruling from the state Supreme Court without having to go through the lower courts first.

ACLU-NM Executive Director Peter Simonson wrote:

"The United States Supreme Court’s decision to overturn DOMA has increased our sense of urgency to clarify the ability of same-sex couples to marry in New Mexico. With all barriers to federal recognition removed, our State cannot stand by as thousands of same-sex couples, many of whom were married out of state, continue to be denied those protections."

NCLR explains that:

"A writ of mandamus is a special legal action that permits the New Mexico Supreme Court to resolve an issue without waiting for the lower courts to rule. The New Mexico Supreme Court is not legally required to accept writ petitions, but it may do so when presented with an issue of great public importance." 5

In addition to the writ of mandamus, on 2013-MAR-21, the ACLU of New Mexico, ACLU national, NCLR, Sutin Law Firm, and Albuquerque attorneys Maureen Sanders, Kate Girard, and Lynn Perls had also filed filed a lawsuit in the Second Judicial District Court. It is called Griego v. Oliver, and seeks the freedom of same-sex couples to marry in New Mexico.

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2013-AUG-16: State Supreme Court rejects the writ of mandamus:

On 2013-AUG-16, the New Mexico Supreme Court declined to immediately consider the legalization of same-sex marriage. On a positive note, the Court did rule that the couples involved in the Writ have the right to access an "expedited review" of their case in District Court. The lawsuit will continue, presumably at an accelerated rate.

Laura Schauer Ives, legal director for ACLU of New Mexico said:

"While we would have liked for the court to hear this issue immediately, we are encouraged that the court recognizes that this is an important case that should be decided promptly. We look forward to moving this case through the courts as quickly as possible." 6

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "New Mexico for gay marriage," Public Policy Polling, 2011-DEC-20, at: http://www.publicpolicypolling.com/
  2. "NM committee OKs proposal for same-sex marriage," Las Cruces Sun-News, 2013-JAN-31, at: http://www.lcsun-news.com/
  3. "Gay marriage proposal fails in NM House panel," Associated Press, 2013-FEB-21, at: http://www.kob.com/
  4. Steve Terrell, "House panel kills bill on definition-of-marriage amendment," The New Mexican, 2013-FEB-05, at: http://www.lcsun-news.com/
  5. "Same-Sex Couples Ask New Mexico Supreme Court to Protect Their Right to Marry," National Center for Lesbian Rights, 2013-JUL-03, at: http://nclrights.wordpress.com/ This is a temporary URL.
  6. Elizabeth Reed, "NM Supreme Court declines to consider same-sex marriage case," KOB-TV, 2013-AUG-16, at: http://www.kob.com/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2013-JAN
Latest update: 2013-AUG-26
Author: B.A. Robinson

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