New Mexico is the only state that doesn’t specifically authorize or prohibit same-sex marriage in its laws or constitution.
State legislators repeatedly have considered but failed to agree on a constitutional amendment on marriage to submit to voters.
Now, the issue of same-sex marriage is before the state Supreme Court, but it is uncertain whether the justices will decide the matter.
Same-sex couples seeking to marry have filed two cases with the Supreme Court. Before it can get to the legal issues of same-sex marriage, the court must decide that the cases are properly before the court.
The same-sex couples petitioned the Supreme Court to order clerks for Santa Fe and Bernalillo counties to issue them marriage licenses, but state Attorney General Gary King and others say the court’s authority to issue such orders doesn’t extend to county officials and that the cases should have been brought in state District Court.
Attorneys for the same-sex couples argue the Supreme Court should decide the cases, in part because they raise constitutional questions of great public importance.
The justices have ordered additional written arguments by Aug. 12 from lawyers on the jurisdictional question.
If the Supreme Court decides the cases are properly before the justices, the court will first have to decide whether state laws now on the books permit or prohibit same-sex marriage.
Although New Mexico doesn’t specifically allow or ban same-sex marriage, there are laws dealing with marriage license applications, property rights of married couples and more.
Attorneys for the same-sex couples argue there is no basis in the marriage laws to deny them licenses.
But King and others say state marriage laws prohibit same-sex marriage. They point to references in the laws to “male” and “female” and “husband” and “wife.”
If the Supreme Court decides that state laws as written allow same-sex marriage already, the case could end there. But if the court decides state laws prohibit same-sex marriage, the justices could then rule on the constitutional questions.
The attorneys for the same-sex couples argue that being denied the right to marry violates their equal protection and due process rights under the New Mexico Constitution.
King has also said he believes prohibiting same-sex marriage is unconstitutional.
A group of 13 state legislators has prepared a brief for the Supreme Court in defense of New Mexico’s marriage laws. It argues that limiting marriage to opposite-sex couples is constitutional.
The seven senators and six representatives – all Republicans and representing communities across the state – are represented by lawyers for the Alliance Defending Freedom, a religious group active nationwide in the courts on marriage and other issues.
The brief says:
“By democratically choosing to maintain marriage as the union of one man and one woman, the People of New Mexico demonstrate their continued belief that this matter is best resolved by the People themselves, not by their courts.
“The Equal Protection Clause does not prohibit the People of New Mexico – or of any State – from making this choice. To the contrary, it leaves them free to do what they are doing – debating this constitutional issue and seeking to resolve it in a way that will best serve their families, their children, and, ultimately, their society as a whole.”
Gov. Susana Martinez, an opponent of same-sex marriage, has said she favors resolving the issue through a vote on a constitutional amendment on marriage.
UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at email@example.com or 505-992-6280 in Santa Fe. Go to www.abqjournal.com/letters/new to submit a letter to the editor.