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Same-sex marriage (SSM) in New Mexico:

2013-SEP:
Grant County starts to issue licenses.
More Republicans join lawsuit.
State Supreme Court agrees to hear case.

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Discussion of his item is continued from the previous essay

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2013-SEP-03: The eighth county -- Grant County -- is issuing marriage licenses to same-sex couples. Current status:

District Judge J.C. Robinson ordered Grant County Clerk Robert Zamarripa to start issuing marriage licenses "... on a nondiscriminatory basis" to same-sex couples. Zamarripa agreed to comply with the court order, starting in the week of SEP-08. 1 He said:

"We'll let the Legislature and courts decide after this what needs to be done." 2

Current count: Seven counties have achieved marriage equality. An eighth county has been ordered to issue marriage licenses to same-sex couples, but is asking the court to stay the order.

The next day, Mark Joseph Stern posted an article in Slate.com summarizing the status of SSM in New Mexico:

"... even as the battle lines are drawn, the conclusion seems increasingly foregone. More county clerks are likely to join the pro-marriage column soon, as the effort coalesces into a bona fide movement, and even some Republican legislators have refused to enter the fray. Moreover, no matter who wins the early skirmishes, the case is ultimately headed to the state Supreme Court. There, the justices will have to contend with the state’s constitutional command that no citizen shall be denied 'equal protection of the law' -- language identical to that found in the federal constitution. And given that the Supreme Court overturned [Section 3 of] the Defense of Marriage Act just months ago for 'violat[ing] basic due process and equal protection principles,' marriage foes in New Mexico will face an uphill battle." 3 

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2013-SEP-03/04: Eight Republican lawmakers join lawsuit against Doña Ana County Clerk Lynn Ellins:

Eight additional Republican lawmakers joined the lawsuit launched on AUG-30 making a total of 15 plaintiffs, all Republicans. One of the eight Representatives, Paul Bandy, said:

"It's really a separation of powers issues. I don't think the county clerk has the power to make this decision." 4

On the other hand, the oath of office for county clerks includes a promise to uphold the U.S. Constitution. If a clerk is certain that a law is unconstitutional then it would seem that she or he has an obligation to ignore that law and obey the constitution.

Commenting on the current chaotic status in New Mexico, and the response of other county clerks, Ellins said:

"Let me put it this way, some people have balls, some people don't, alright? Some of them truly believe that they need direction from on high and they're not willing to do a constitutional analysis. Some of them are philosophically opposed so they wouldn't do it unless they were brought to the shed and whacked."

"We all strive for uniformity whether it's recording documents, whether it's election law. Many of them feel that until they get a direct answer from the [state] Supreme Court we have to wait." 5

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2013-SEP-06: New Mexico Supreme Court agrees to hear SSM case:

On SEP-05, all of the state's 33 county clerks, joined by the "New Mexico Association of Counties," asked the state Supreme Court to rule whether SSM is legal in New Mexico. This appears to be the fastest way to end the current chaotic SSM situation in the state. The next day, the five justices agreed unanimously and without comment to accept the case. This is the lawsuit in which Judge Mallot, the District Court Judge for Bernalillo County ordered on 2013-AUG-26 that the county clerk distribute marriage licenses to same-sex couples. The case involves 12 plaintiffs -- six same-sex couples -- who are represented by the American Civil Liberties Union, the American Civil Liberties Union of New Mexico and the National Center for Lesbian Rights. The Court established SEP-23 as the final date for legal briefs. Hearings will be held on OCT-23. 6,7.8.9

Everybody seems happy with the state Supreme Court decision:

  • Rep. Anna Crook (R), who opposes marriage equality, said:

    "I think it's excellent. It's been absolute chaos. We need to have a ruling one way or the other instead of 'my county can, yours can't'." 7

  • Peter Simonson is the executive director of The American Civil Liberties Union of New Mexico -- a group which favors equality for all. He commented:

    "We welcome the Supreme Court’s order and hope that it will lead to a speedy decision establishing the freedom to marry for all same-sex couples in New Mexico. Now is the time for New Mexico to treat same-sex couples with the same dignity and respect as all other couples and fully respect their lifelong commitments to each other and their families." 9

  • Christopher Stoll, of the National Center for Lesbian Rights, said:

    "We have couples that have received marriage licenses and have gotten married, and they deserve the certainty of knowing their marriage is secure and will be respected by the state." 8

  • Bernalillo County Clerk, Maggie Toulouse Oliver, (D) said:

    "Certainly there has been some murkiness on the issue and we need some clarity. I am hopeful the Supreme Court can provide that." 8

  • Los Alamos County Clerk Sharon Stover (R) said:

    ""It’s been difficult for us to be caught in the middle."

  • Senator Daniel Ivey-Soto (D), a lawyer for the county clerks, said:

    "This is excellent news because county clerks will now know what the law is, and they’ll know how to not just administer their offices but how to serve their constituents. ... [The quick response to the request for a hearing] indicates the Supreme Court is interested in clarifying the law." 10

There appear to be two possible outcomes for the Supreme Court decision:

  • If the state Supreme Court rules in favor of SSM, their decision would probably apply across all of the counties in the state shortly thereafter. New Mexico would be the 15th to attain marriage equality. Along with the District of Columbia, it would be the 16th political jurisdiction where SSM would be legal.

    The only path forward for social and religious conservatives to restore marriage inequality would be to try to place a measure on the ballot -- probably on election day in 2014-NOV -- that, if passed, would amend the state Constitution by writing discrimination into it for the first time. The amendment would limit marriage only to the union of one woman and one man. However, with majority support among New Mexican voters favoring SSM, passage of the referendum would be doubtful.

  • If the Court decides that SSM is not permitted in the state, then the existing same-sex married couples would probably be forcibly divorced against their will, and the struggle for marriage equality would continue, perhaps through a district federal court in New Mexico.

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This topic continues in the next essay

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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. Barry Massey, "Grant County will be 7th N.M. county to issue marriage licenses to gay couples," Associated Press, 2013-SEP-03, at: http://www.lgbtqnation.com/
  2. Barry Massey, "7th New Mexico County To Allow Gay Marriage," Huffington Post, 2013-SEP-06, at: http://www.huffingtonpost.com/
  3. John Joseph Stern, "Is Gay Marriage Legal in New Mexico Now?," Slate - Outlook, 2013-SEP-04, at: http://www.slate.com/
  4. Zelie Pollon, "Republican lawmakers join New Mexico legal fight against gay marriage," Reuters, 2013-SEP-03, at: http://www.reuters.com/
  5. Daniel Strauss, "New Mexico clerks lead the push to legalise same-sex marriage," The Guardian, 2013-SEP-05, at: http://www.theguardian.com/
  6. Zelie Pollon & Steve Gorman, "New Mexico high court to hear arguments for same-sex marriage statewide," Reuters, 2013-SEP-07, at: http://uk.reuters.com/
  7. Zelie Pollon, "New Mexico Supreme Court to hear same-sex marriage case." Reuters, 2013-SEP-06, at: http://usnews.nbcnews.com/
  8. Dan Boyd, "High court to hear same-sex marriage case," Albuquerque Journal, 2013-SEP-07, at: http://www.abqjournal.com/
  9. Daniel Reynolds, "New Mexico Supreme Court to Hear Case for Marriage Equality," The Advocate, 2013-SEP-07, at: http://www.advocate.com/
  10. "NM high court to hear gay marriage case next month," Associated Press, 2013-SEP-06, at: http://www.abqjournal.com/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2013-SEP-04
Latest update: 2013--SEP-24
Author: B.A. Robinson

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