Now that one county clerk is issuing same-sex marriage licenses, is New Mexico state on the verge of legalizing marriage equality?
Doña Ana County Clerk Lynn Ellins began issuing same-sex marriage licenses last week based on the fact that New Mexico’s marriage laws are gender neutral and therefore, even without explicit recognition of same-sex couples, would appear to allow for equal marriage rights.
Ellins said he had carefully read state laws and concluded the “state’s marriage statutes are gender neutral and do not expressly prohibit Doña Ana County from issuing marriage licenses to same-gender couples.”
Ellins, however, said “any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act.”
“I see no reason to make committed couples in Doña Ana County wait another minute to marry,” he added in his statement.
Attorney General Gary King has said he will not challenge Ellins’ move, as he believes that marriage equality bans are unconstitutional. He has also said that he will not move to prohibit other counties from undertaking similar action but he did warn same-sex couples they should be aware that there are several suits that are currently pending before the state supreme court that could invalidate their marriage licenses.
This move technically has its origins dating back as far as 2004, when Sandoval County clerk Victoria Dunlap (a heterosexual Republican) began issuing marriage licenses to same-sex couples when, after an inquiry on the legality of the matter, she was prompted to examine state law and found no statute prohibited same-sex marriages. She contended that politics aside, she was duty-bound to provide the couples with marriage licenses.
Dunlap was eventually censured by the Republican Party and was slapped with a restraining order (that was never lifted), preventing her from issuing more marriage licenses. However, the validity of those marriages was at least established enough to allow divorce proceedings in at least one case.
More recently in March of this year, Santa Fe Mayor David Coss, together with City Councilor Patti Bushee and City Attorney Geno Zamora, announced that after careful examination of the state’s currents laws, they had determined New Mexico law actually already allows same-sex marriages because of the state’s gender neutral statutes and that a resolution recognizing same-sex marriages could now be brought to a vote.
Santa Fe City Council passed just such a motion in April, and July 20 saw the Santa Fe County Commission approve a similar resolution, saying same-sex couples would be provided marriage licenses.
Attorney General Gary King also refused to block that move but again pleaded for restraint, saying that this matter should be decided by state officials and not local governments.
A number of lawsuits are also making their way toward the state’s supreme court featuring same-sex couples who are demanding the state recognize their rights to equal protection and treatment under the law and allow them to officially marry. In fact, last week saw plaintiffs ask the state supreme court to consolidate their cases, meaning that once the lower courts have ruled, there would be the option of fast tracking toward a state supreme court review. No word yet from the court on that matter.
Also, a same-sex couple from Santa Fe filed an emergency request asking the Second Judicial District Court to allow them to legally marry because one of the women is suffering a rapid decline in health due to what will eventually be a fatal brain tumor. This extends beyond just the right to marry in and of itself, with the couple who have been together for 21 years arguing that the only way they can protect their family during this time, and in particular their three children, is to be able to have the state formally recognize their union.
“I want to know that my family will be protected if I pass away,” Jen Roper, the plaintiff suffering declining health, is quoted as saying. “Angelique and I have been married in our hearts for 21 years and raised three wonderful children together. Because of my illness, we do not have the luxury of waiting years for the courts to decide whether loving, committed same-sex couples can marry in New Mexico. For us, the time is now.”
All of this together seems to be brewing up a perfect storm that, whether through court action or legislators seeing a need to finally resolve this ambiguity in the law, appears set to make New Mexico among the next few states that will recognize the right to marriage equality.
The anti-gay National Organization for Marriage (NOM) is of course furious about this and has issued a rebuke against Doña Ana County and the New Mexico attorney general, admonishing that they are breaking the law by not preventing the issuing of same-sex marriage licenses — when quite clearly they are not for reasons made clear above — and while quietly seeming to forget that less than two months ago, NOM in fact called for all California clerks who believe in so-called traditional marriage to ignore the judgment overturning California’s ban on marriage equality, Proposition 8 and refuse to issue same-sex marriage licenses.
If this, however, is the best that anti-gay marriage forces can muster, all the better for New Mexico and the fight for equality as a whole.
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