Gender, or a lack of it. That’s the basis by which Santa Fe officials announced this week that gay marriage is already legal in New Mexico.
Santa Fe city leaders, including Mayor David Coss, City Councilor Patti Bushee, and city attorney Geno Zamora, held a news conference on Tuesday announcing they believe that same-sex marriage is already legal in New Mexico. The basis of this contention is threefold.
First, and most importantly, New Mexico’s marriage law contains no reference to gender, mentioning only the contracting of “parties” in marriage, and same-sex marriage is not on a list of marriages that are not recognized.
This has previously been used to make the case for recognizing same-sex marriages officiated out-of-state, the second point that Coss and Bushee used to make their case.
The third and final issue is that New Mexico does not tolerate anti-LGBT discrimination. An Act Relating to Human Rights, which became effective July 1, 2003, ensures New Mexico protects its citizens from discrimination based on sexual orientation and gender identity in employment, housing, credit, public accommodations and union membership. Therefore, without legal justification for discrimination in marriage, there can be no basis to suppose the assumed gay marriage ban is legal.
Coss and Bushee are now calling on the rest of the City Council to support a resolution to urge county clerks across the state to begin issuing marriage licenses to same-sex couples.
The resolution won’t have any legal power, but it does send a clear message to the New Mexico legislature.
“It’s time to push this issue,” Mayor David Coss is quoted as saying at the press conference. A bill to recognize same-sex marriage was introduced into the state legislature last year, but lawmakers have so far failed to move on the bill and it is believed they have little appetite to do so.
Santa Fe County Clerk Geraldine Salazar is quoted as saying by the Santa Fe New Mexican news that until a change of state law happens, the ambiguity of the current law prevents her from acting:
“I would love to be able to issue marriage licenses [to same-sex couples], but under the current law, I feel I’m not free and clear to do so. The Legislature creates the laws and the judges interpret the laws, and I, as a county clerk, do not create or interpret laws. And I feel that my oath of office does not allow me to act counter to the laws of New Mexico.”
No New Mexico judge has ever ruled on whether a right to same-sex marriage exists per the state constitution or whether current law caters for that right. Both Coss and Bushee said at Tuesday’s event that they expect this issue to come before the Supreme Court of New Mexico if the state legislature does not answer the call first.
For Coss, at least, this fight is personal. His daughter is a lesbian and he wants her to have the same rights as all his other children.
“As a dad, I’d just like to walk her down the aisle some day and I will never get to do that if we don’t move on these issues in Santa Fe,” he is quoted as saying. “Santa Fe is ready. New Mexico is ready, I know. Our country is ready to move on this.”
The proposed resolution will be introduced to the city council on March 27, the same day the U.S. Supreme Court will hear opening arguments against the federal Defense of Marriage Act.
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