New Mexico Marriage Definition Questioned

Santa Fe City Attorney Geno Zamora signed off on a memorandum dated March 19, 2013, stating that “same-sex marriage is permitted in New Mexico,” according to reports in various newspapers, including the March 20 edition of the Albuquerque Journal.  The memorandum cites the following evidence for this conclusion:

1.  New Mexico has a marriage recognition statute, Section 40-1-4, under which the state’s attorney general opined in 2011 (N.M.AG Op. No. 11-01) that same-sex marriages performed in other jurisdictions would be recognized in New Mexico.

2.  New Mexico’s statutory definition of marriage is gender neutral, describing it as  “civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.”

3.  The New Mexico statute setting out grounds upon which a marriage license can be denied does not mention the sex of the individuals, authorizing denial only when the applicants are closely related or at least one of them is a minor.

4.  The New Mexico Constitution has an equal rights amendment banning sex discrimination by the state, which would take priority over any statute.

5.  Although the marriage license application form, as specified by statute, is gendered, Section 40-1-12 allows sections of the marriage code to be waived.

Zamora concludes that if a same-sex couple is denied a license, they could file for a writ of mandamus in the district court ordering the county clerk to issue one.

Zamora’s memorandum was persuasive to Mayor David Coss and City Council member Patti Bushee, who issued a public call for Santa Fe County Clerk Geraldine Salazar to begin issuing marriage licenses to same-sex couples.  She has demurred for now, saying that she doesn’t feel “free and clear” to do so because “the Legislature creates the laws in our state and our judges interpret these laws.”  She feels that her oath of office forbids her from acting “counter to the laws of New Mexico,” and evidently the City Attorney’s interpretation of those laws are not good enough for her. 

Attorney General Gary King, who issued the marriage-recognition opinion in 2011, has not received a request for an opinion on whether same-sex couples can marry under existing New Mexico law, but a spokesperson indicated to the Journal that he would welcome the opportunity to respond for a request for his opinion.  The state legislature has failed to advance a proposed marriage equality bill, but has also failed to advance a proposed constitutional amendment banning same-sex marriages, so it seems nothing is likely to get through the legislature on either side of the issue.

One might suggest a little patience, since it is possible that the Supreme Court’s rulings later this term in the DOMA/Prop 8 cases will provide some clarity on the constitutional issues that would be implicated were a couple to file suit seeking same-sex marriage rights in the state.

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