Same-sex marriage (SSM) in New Mexico:

2004: Temporary sale of marriage licenses.
2013: Court actions to legalize same-sex marriages.

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Quotations:

	"If marriage means everything, it means absolutely nothing." Dr. James C. Dobson, of Focus on the Family.
	"A loving man and woman in a committed relationship can marry. Dogs, no matter what their relationship, are not allowed to marry. How should society treat gays and lesbians in committed relationships? As dogs or as humans?" A posting to an Internet mailing list; used by permission of the author.

Laws and Constitutional articles that may impact same-sex marriage:

The New Mexico Bill of Rights and marriage laws appear ambiguous on whether same-sex couples can marry:

	Bill of Rights: The New Mexico Bill of Rights, which forms Article II of the state Constitution, appears to support of the right of gay and lesbian couples to marry: Section 4 states that:   "All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the  rights of enjoying  and defending  life and  liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness." 2 If one considers that: Same-sex couples are composed of two "persons," and People marry, in part, in order to seek "safety and happiness,"  then the Constitution would seem to guarantee the right of same-sex and opposite-sex couples to marry. Section 18 states that:  "No  person shall  be deprived of  life, liberty or  property  without due process of law; nor shall any person be  denied equal protection of the laws.  Equality of rights under law shall not be denied on account of the sex of any person...." 2 All couples cannot all receive "equal protection" if some are forbidden to marry and others are allowed to marry. With very few exceptions, Mary can marry Bob or Jim or Sam; but she is not allowed to marry Sue or Ann or Carol because she is of the wrong sex. Thus, Mary has been denied equal rights under law because of her sex. This appears to be a violation of Section 18.
	New Mexico Statutes: These seem to imply that only opposite-sex couples can marry. Chapter 40 "Domestic Affairs" of the "Statutory Chapters in New Mexico Statutes" includes: Article 1: Laws governing "Marriage in General:" Item 40-1-18 is the "Form of application [marriage] license and certificate." The form contains headings which imply that spouses-to-be must be of opposite sex: The premarital physical examination results have separate lines for "Bride" and "Groom." The statement by the couple that there is no legal impediment to the marriage has columns or a "Male Applicant" and "Female Applicant." The area where the couple signs has separate spaces for "Groom" and "Bride." Article 2: Laws governing "Rights of married persons generally:" Items 40-2-1, -2, -3 and -8 identify the couple as being composed of husband and wife.
	American Legal Publishing Corporation, a company that makes New Mexico statutes available on the Internet, includes 200 references to marriage. There are laws prohibiting couples from marrying if: They are too young (40-1-6), Too closely related genetically (40-1-9), or Already in a valid marriage (30-10-1). 3 Article 21 of the "Compact with the United States", which forms part of the State constitution, guarantees religious tolerance, but states that: "Polygamous or plural marriages and polygamous cohabitation are forever prohibited." 3

Existing orders, bills & laws impacting gays, lesbians and same-sex couples:

	On 1985-APR-1, the governor issued an executive order protecting gay and lesbian employees of the government from discrimination. 4
	On 1998-FEB-19, Bill SJR-4, a bill to ban same-sex marriage in New Mexico, was defeated. At the time, it was the fourth such attempt in three years. A similar bill failed in 2000. 4 As of mid-2004, no such bill has been passed 5
	On 2003-MAR-21, the state legislature broadened the state's Human Rights Act by approving a bill to prohibit bias against people based on sexual orientation or gender identification. The scope of the act includes employment (in large companies only), housing, credit, public accommodations and union membership. The vote was essentially along party lines with Democrats in favor and Republicans opposed. The Senate approved the bill by a close vote of 22 to 20 later that day. Governor Richardson (D) agreed to sign the bill. 6
	As of 2004-JAN, New Mexico was widely expected to consider a constitutional amendment in the near future to restrict marriage to one man and one woman. 7 However, it did not proceed.

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2004-FEB-20: County Clerk briefly issued marriage licences to same-sex couples:

Following the lead of city officials in San Francisco, CA who had started to issue marriage licenses to same-sex couples, Sandoval County clerk, Virginia Dunlap, began issuing licenses to same-sex couples. According to the Associated Press:

"Dunlap said she made the decision after County Attorney David Mathews determined New Mexico law is unclear on the issue. He said state law defines marriage as a contract between parties but does not mention gender. She said: 'It's going to be across the country and so we wanted to be ahead of the curve'."

Over 60 couples signed up for applications. Mercury News said that the:

"County Clerk's Office granted licenses to 26 same-sex couples ... before state Attorney General Patricia Madrid issued an opinion in late afternoon saying the licenses were 'invalid under state law.' The clerk's office stopped issuing licenses and told couples that their licenses were invalid." ₁

State Sen. Steve Komadina criticized Dunlap's decision to issue licenses. He said:

"I feel badly that action was taken before an answer was obtained. That was very irresponsible and will cause heartache to people on all sides of the question."

Tony Perkins of the Family Research Council described Dunlap's action as "defying state law," and as a "rogue action." ₉

2013-JUL-03: American Civil Liberties Union of New Mexico (ACLI-NM) files "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. The ruling stated that the 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 over federal 1,100 benefits and protections. These include eligibility for family medical leave, social security survivor’s benefits, access to health care for a spouse, immigration implications, etc., all of which are given to opposite-sex married couples.

There are some same-sex couples in New Mexico who have married in another states, but whose marriage is not recognized in New Mexico. They are now eligible to receive some federal benefits, but not others. To receive the full set requires that New Mexico recognizes their out-of-state marriages. There are many other same-sex couples in New Mexico who would like to marry.

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, which is necessary to ensure that those couples qualify for all of the federal programs that are now available to married same-sex couples as a result of the United States Supreme Court decision last week invalidating the Defense of Marriage Act (DOMA). ₁₀

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." ₁₀

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 the event that the Supreme Court refuses to respond to the writ mandamus, the lawsuit will continue.

References used:

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

1. "Developments in same-sex marriage issue," Mercury News, 2004-FEB-20, at: http://www.mercurynews.com/
2. "Constitution of the State of New Mexico, Adopted January 21, 1911," at: http://www.harbornet.com/
3. New Mexico Statutes "40-1-18. Form of application, license and certificate (1961)," and others, at: http://www.amlegal.com/
4. "New Mexico," Lambda Legal, at: http://www.lambdalegal.org/
5. "New Mexico Gay Marriage Ban Dies," Data Lounge, 1998-FEB-24, at: http://www.datalounge.com/
6. "New Mexico Marks Gay Rights Win," DataLounge, 2003-MAR-24, at: http://www.datalounge.com/
7. Jeni Horn, "Marriage definition preserved in Ohio," Talon News, 2004-JAN-23, at: http://www.gopusa.com/
8. "New Mexico clerk allows same-sex couples to marry before AG's ruling prompts her to stop," Associated Press, 2004-FEB-20, at: http://www.sfgate.com/
9. Tony Perkins, "New Mexico Joins Anarchy, Issues Homosexual 'Marriage' Licenses," Washington Update, 2004-FEB-20.
10. "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.

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Copyright © 2004 to 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2004-FEB-21
Latest update: 2013-JUL-08
Author: B.A. Robinson

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