N.M. Supreme Court rules same-sex marriage legal


Equality was the word of the day last Thursday when the New Mexico Supreme Court ruled that same-sex marriage is legal in the state.

"We hold that the state of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law," Justice Edward Chavez wrote in the unanimous opinion.

The ruling comes after two months of waiting and more than 1,400 same sex marriages across the state. This makes New Mexico the 17th state in the country to legalize same-sex marriage.

Getting to the Supreme Court ruling took a bit of a convoluted path.

Lynn Ellins, the county clerk in Doña Ana County, decided to start issuing marriage licenses to same-sex couples in August. Ellins, an attorney, decided that state law did not prohibit him from doing so.

Then there were district court decisions out of Bernalillo and Santa Fe counties ordering those clerks to begin issuing gender-neutral licenses

Eventually, eight New Mexico counties were issuing marriage licenses to gay and lesbian couples, either under court order or voluntarily.

Valencia County Clerk Peggy Carabajal, a Republican, voluntarily began issuing same-sex licenses on August 28.

Fifteen Republican state lawmakers filed suit against Carabajal, alleging she usurped the powers of the Legislature by issuing marriage licenses to same-sex couples.

She along with the other 32 county clerks joined ongoing litigation to ask the Supreme Court to make a decision on the issue, one way or the other.

When contacted by the News-Bulletin, Carabajal said she had no comment at this time on the court's ruling.

When Carabajal began issuing licenses to same-sex couples in August, she said she did so based on the two district court rulings and the actions of her fellow clerks, as well as the state constitution's equality clause.

It reads, "No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection under the laws. Equality of rights under law shall not be denied on account of the sex of any person."

Since Valencia County began issuing same-sex marriage licenses, more than 20 licenses have been requested.

The Supreme Court's decision will be challenged by state Sen. William Sharer (R-Farmington) in the January legislative session. Sharer has pre-filed a joint resolution proposing a constitutional amendment that will define marriage as "the union of one man and one woman." As a constitutional amendment, the question would be put to a popular vote.

In the opinion, Chavez writes that although the question of same-sex marriage "arouses sincerely-felt religious beliefs both in favor of and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution."

He continues, saying the court must depend on legal principles to analyze the statutory and constitutional bases for depriving same-gender couples from entering into a purely secular civil marriage.

"Our holding will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organizations will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention to his or her religious beliefs," Chavez wrote.

The ruling concluded that state statutes have the effect of precluding same-gender couples from marrying and benefitting from the "rights, protections and responsibilities that flow from civil marriage. Same-gender couples who wish to enter into a civil marriage with another person of their choice and to the exclusion of all others are similarly situated to opposite-gender couples who want to do the same, yet they are treated differently."

The opinion also takes apart the argument made by same-sex marriage opponents that the primary purpose of marriage is "responsible procreation and childbearing."

"Procreation has never been a condition of marriage under New Mexico's law, as evidenced by the fact that the aged, the infertile and those who choose not to have children are not precluded from marrying," Chavez wrote.

The opinion says barring individuals from marrying solely because of their sexual orientation violates the Equal Protection Clause of the New Mexico Constitution.

"We hold that the state of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law," the opinion concludes.

In the remedy portion of the opinion, Chavez writes that the court declines to strike down current marriage laws, as that would be inconsistent with the historical legislative commitment to fostering stable families through the marriage laws.

"Instead, 'civil marriage' shall be construed to mean the voluntary union of two persons to the exclusion of all others," Chavez writes.

He goes on to write that all rights, protections and responsibilities from a marital relationship shall apply equally to both same-gender and opposite-gender married couples, and any reference in state statute, rule, regulation or common law that denotes a marital relationship — words such as husband, wife, dependent and family — shall apply to same-gender couples who choose to marry.

The opinion also orders that gender-neutral language shall be used by the clerks on the applications, licenses and certificates.

When Carabajal began issuing same-sex marriage licenses, she had the application forms and other paperwork reprinted using gender-neutral language — "spouse" and "spouse," instead of the traditional "groom" and "bride" and "applicant" and "applicant," instead of "female applicant" and "male applicant."

-- Email the author at jdendinger@news-bulletin.com.