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Unique legal situation led to decisions on marriage

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New Mexico is on track to become the 14th state in the nation to allow same-sex marriage – without the issue ever being approved by the state’s voters, the Legislature or the New Mexico Supreme Court.

A district court order Monday held that denying marriage licenses to same-sex couples would be a violation of the state constitution’s equal-rights protection. And that ruling follows at least two county clerks – in 2004 and last week – taking action to interpret the way state law defines marriage in New Mexico.

“New Mexico is the only state that doesn’t, by legislation or higher court order, go one way or another on this issue. It’s interesting that it came up through the clerk’s office,” said Antoinette Sedillo Lopez, a professor of family law at the University of New Mexico School of Law.

The effort was initiated in 2004 when Sandoval County Clerk Victoria Dunlap, a Republican, attempted to issue same-sex marriage licenses after concluding that New Mexico’s 1973 Equal Rights Amendment made statutes gender-neutral and required marriage licenses to be issued to same-sex couples.

But Democratic Attorney General Patricia Madrid moved quickly back then to put a stop to same-sex marriage the same day it started. A district court judge said Dunlap was prohibited from issuing the marriage licenses again until her term ended.

Had that order been appealed in 2004 – when only one U.S. state recognized same-sex marriage – a New Mexico court likely would have reached a conclusion different from state District Judge Alan Malott’s order in Bernalillo County on Monday saying same-sex marriage bans would be unconstitutional, Sedillo Lopez said.

“The law is recognizing a huge cultural shift,” Sedillo Lopez said.

Earlier this year, debate surrounding interpretation of New Mexico’s marriage laws reignited.

Santa Fe city attorney Geno Zamora in March issued an opinion saying that same-sex marriage is already legal because of the state’s gender-neutral statutes. The lawsuit that resulted in Malott’s order this week was filed soon after, raising many of the same arguments.

But again it was a county clerk that acted first on the issue.

Doña Ana County Clerk Lynn Ellins last week decided he was tired of waiting on the courts and moved to issue same-sex marriage licenses in Las Cruces. He licensed 82 same-sex couples in the first two days.

Unlike in 2004, the Attorney General’s Office made no effort to intervene after Ellins acted.

Attorney General Gary King, a Democrat, said his office would take no action because King shared Ellins’ view that denying marriage to same-sex couples is unconstitutional – although King said he didn’t think same-sex marriage was allowed by the language of state law.

Days later, District Judge Sarah Singleton of Santa Fe, acting on a legal petition, directed the Santa Fe County clerk to issue licenses. Malott’s order extended the directive to Bernalillo County.

Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, which brought the Bernalillo County suit, appeared to have a different view of the origins of Malott’s order this week.

Simonson said the confluence of events to change the way the state recognizes same-sex marriage likely didn’t influence the outcome of Malott’s court order.

“I honestly don’t think it had any bearing,” Simonson said. “… I just can’t underscore enough the importance of having a court say for the first time in our state that to deny same-sex marriages is unconstitutional. That ruling supersedes all of the quibbling whether clerks can interpret the marriage forms in state statute as they will.”

Gov. Susana Martinez on Tuesday criticized King as falling short of his obligation to defend the state’s interpretation of marriage laws as New Mexico’s top attorney.

“The attorney general is the lawyer that represents the state and can go forward (with litigation), but he has chosen not to do anything,” Martinez said.

Martinez said the result of King’s inaction is a “patchwork” sanctioning of same-sex marriage in New Mexico.

“We’re getting this patchwork of some counties saying ‘yes’ and some counties saying ‘no,’ and that is not a state law,” Martinez said. “We really shouldn’t have county clerks making these very big decisions.”

The Republican governor recently has called for the same-sex marriage issue to go to a vote as a constitutional amendment.

King’s office did not return a call for comment Tuesday.

But Sedillo Lopez said the Bernalillo County judge likely would have reached the same opinion to support same-sex marriage regardless of whether King attempted to intervene.

“It’s interesting that the attorney general failed to (intervene), but the attorney general could have come in and said whatever, and the court could have still come to the same conclusion,” Sedillo Lopez said. “I think that’s mainly because of the cultural shift.”

Even so, Malott’s order outlining constitutional protections for same-sex marriage is expected to be tested.

A group of Republican lawmakers is preparing to file suit challenging the issuance of marriage licenses to same-sex couples.

An appeal of that ruling could send the case to the state Supreme Court, where a final order could come that would act as law for all counties of the state. The state’s high court is composed of five Democratic justices.

“I think this is going to wind up there one way or another, this or another case, and I think that will happen fairly quickly,” Simonson said.

Journal Staff Writer Dan Boyd contributed to this story.

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