Copyright © 2013 Albuquerque Journal
A same-sex couple denied a marriage license filed a legal challenge in Santa Fe on Thursday – hours after Attorney General Gary King said state law doesn’t allow same-sex marriage but he thinks the law might be unconstitutional.
King, a Democrat seeking his party’s nomination for governor, weighed in on the question after being asked in March to review the Santa Fe city attorney’s opinion that New Mexico marriage laws do, in fact, allow same-sex marriage.
The attorney general disagreed.
“We conclude that gay marriage is not currently authorized under New Mexico’s statutory law,” says a summary of legal research provided by King’s office after his news conference in Albuquerque.
However, King also said, “We feel like there is a significant issue relating to our equal-protection clause and whether or not the statute would withstand constitutional scrutiny. …”
“I think the answer to that will come through the courts,” King told the news conference.
Meanwhile, King emphasized his support for gay marriage despite his legal interpretation that state law doesn’t allow it.
“Personally, I believe that it’s inappropriate for the state to prevent same-sex couples from sharing in the rights that opposite-sex couples have,” King said.
Gov. Susana Martinez, a Republican who is expected to seek re-election next year, has voiced opposition to gay marriage, saying gay couples can access the same rights as married couples through court orders. Her office declined to comment on King’s actions Thursday.
Soon after King’s news conference, two gay men – Yon Hudson, 51, and Alex Hanna, 42 – went to the Santa Fe County Clerk’s Office, where they were denied a marriage license.
The couple’s lawyers, John Day and state Rep. Brian Egolf, immediately filed a legal challenge in state District Court.
Day said marriage equality is the “civil rights issue for this time.”
“Same-sex couples who love each other are trying to do the same things African-Americans tried to do 50 years ago and were stopped by outdated and (unjust) laws and so we’re trying to change that in a positive way,” Day said.
Asked about the effort to seek a same-sex marriage license despite legal hurdles, Hanna said, “New Mexico is ready, I think.”
The couple’s attorneys said the effort to get a marriage license hours after King’s statement on same-sex marriage was a coincidence.
The lawsuit filed on behalf of Hudson and Hanna on Thursday is not the first challenge to New Mexico’s marriage laws. Two other couples, Miriam Rand and Ona Porter, and Rose Griego and Kim Kiel, filed a joint lawsuit in state District Court in March against Bernalillo County Clerk Maggie Toulouse Oliver, arguing the denial of marriage rights under state law is unwarranted.
Toulouse Oliver has cited a 2004 letter by then-Attorney General Patricia Madrid in her office’s denial of marriage licenses to same-sex couples. That caused many gay marriage supporters to look to an opinion requested from King’s office as a direction that could prompt county clerks to begin issuing marriage licenses to same-sex couples.
King said he did not issue a formal legal opinion on same-sex marriage to prevent conflict with the pending lawsuits. Instead, he advised county clerks around the state to continue to restrict marriage licenses only to opposite-sex couples until a court overturns New Mexico law or the Legislature weighs in.
Santa Fe City Attorney Geno Zamora, who co-authored the city’s legal opinion maintaining gay marriage is permissible under state law, was critical of King.
“The attorney general had an opportunity to single-handedly protect the rights of all our citizens and didn’t,” Zamora said.
“I am always weary of statements that one opposes discrimination but is powerless to change it,” Zamora added. “Our duty as public officials is to stand up to discrimination regardless of the consequences.”
Following Zamora’s opinion that same-sex marriage was legal under current New Mexico law, the Santa Fe City Council adopted a resolution urging county clerks to begin to issue same-sex marriage licenses.
Santa Fe Mayor David Coss said, “My heart goes out to those who have seen their civil rights denied for another day.”
Rep. Bill McCamley, a Las Cruces Democrat who requested an attorney general’s opinion from King on same-sex marriage, said he hopes the courts act quickly after the Legislature failed earlier this year to get a bill to legalize gay marriage out of committee.
“The Legislature will probably not be dealing with this definitively in the near future, so the Supreme Court will probably be the place where this is decided,” McCamley said.
“My hope is whatever happens, they choose to act on this sooner than later,” he said. “And I hope they make the correct decision, which is to allow same-sex marriage. People in society want this.”
Legalization of same-sex marriage has repeatedly run into opposition from Republicans and Democrats in the New Mexico Legislature.