If Same-Sex Marriage Is Legal in New Mexico, and The State Moves To Ban It, Would It Trigger The Same Legal Consequences As Prop 8?

March 22nd, 2013


It seems that the City Attorney of Santa Fe discovered that all along, there was no legal bar to same sex marriage in New Mexico.

Santa Fe officials on Tuesday urged county clerks to provide same-sex couples with marriage licenses, claiming that same-sex marriage was legal in New Mexico.

In a legal memo, City Attorney Geno Zamara explained that the state’s definite of marriage was gender-neutral and therefore did not prohibit same-sex marriage. He also noted that the constitution of New Mexico prohibits denying equality under the law on the basis of sex.

“New Mexico law does not define marriage as between a man and a woman. Nor does New Mexico law prohibit same-sex marriage. New Mexico already recognizes same-sex marriages performed in other states and our Constitution requires equal treatment on the basis of sex. Same-sex marriage is legal in New Mexico,” Zamara concluded.

At a press conference, Mayor David Coss and Councilor Patti Bushee said they had sponsored a resolution expressing support for same-sex marriage. The resolution will be introduced at the next City Council meeting.

“Santa Fe is a city of respect, acceptance, and diversity that embraces all of our residents,” Coss said. “I sponsored this resolution because all loving, committed couples should have the right to marry regardless of their sexual orientation.”

Santa Fe County Clerk Geraldine Salazar, however, said she had no plans to issue marriage licenses to same-sex couples until the law was changed.

“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,” she told the Santa Fe New Mexican. “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 to me act counter to the laws of New Mexico.”

This is not unlike the marriage statute in effect when Baker v. Nelson came to the Supreme Court. In Linda Greenhouse’s latest column (which had a lot of buildup for nothing), she describes how the case came about:

Jack Baker was a student at the University of Minnesota, where he was a well-known gay-rights activist, when he and his partner, James McConnell, showed up at the county clerk’s office to apply for a marriage license. The year was 1970. Minnesota law set out the logistics for obtaining a license and marrying in the state, but contained no explicit requirement that members of the couple be of the opposite sex. Nonetheless, and not surprisingly, the county clerk turned them down.

So what happens if some places in NM issue same-sex marriage licenses. Then, New Mexico, either through referendum or the legislative process, clarifies that marriage is defined as one man and one woman. What would happen to those issued licenses during the SSM interegnum? That would be analogous to the situation with Prop 8. Now that could create constitutional problems.

Adam Liptak recently profiled the San Francisco officials who issued the permits, effectively an act of civil disobedience by a government official.

John C. Eastman, a law professor at Chapman University in Orange, Calif., and the chairman of the National Association for Marriage, which opposes same-sex marriage, said government officials in the two cases had demonstrated “a cavalier attitude toward their duties to enforce the law.” He was particularly critical of Mr. Herrera’s suit, which followed a brief period in 2004 during which Gavin Newsom, then the mayor of San Francisco and now the state’s lieutenant governor, instructed city officials here to issue marriage licenses to same-sex couples. “It was exhibiting lawlessness,” Professor Eastman said.

Mr. Herrera said it was sometimes necessary for government lawyers to attack the laws they are charged with defending. “When a disfavored minority is being targeted,” he said, “it’s up to a public law office to stop it.”

Let’s see if anyone issues SSM permits in NM.

H/T Outside the Beltway