SANTA FE – New Mexico Attorney General Gary King said Friday that same-sex marriage is a “civil rights” issue that should be decided by the courts, not a statewide vote.
In a memo released by his office, King, a two-term Democrat, cited three historical landmarks – the Emancipation Proclamation, women’s suffrage and the Civil Rights Act – that were enacted despite not being voted upon by the general electorate.
“I maintain that the best way to resolve this issue is for the New Mexico Supreme Court to decide whether our current law is unconstitutional,” King said in his memo.
The Supreme Court has scheduled an Oct. 23 hearing on the legality of same-sex marriage in New Mexico. Legal briefs in the case are due next week.
However, the hot-button topic has also become a political issue, and King’s remarks Friday put him squarely at odds with Gov. Susana Martinez, whom he could face off against in next year’s gubernatorial election.
Martinez, a Republican, has said that state voters should decide whether to sanction same-sex marriage. The governor has also said she believes marriage should be limited to between a man and a woman.
Last month, Martinez criticized King for not defending state laws that appear to prohibit gay marriage.
“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 at the time.
In July, King said he did not think state laws allowed for same-sex marriage, although he also said he believed such laws would be vulnerable to challenge. That stance, announced after the Santa Fe city attorney had issued a nonbinding opinion that same-sex marriage is allowed in New Mexico, drew criticism from some fellow Democrats.
Recently, the gay marriage movement in New Mexico gained momentum after Doña Ana County Clerk Lynn Ellins began issuing marriage licenses to gay and lesbian couples on Aug. 21. He said it was time to stop waiting for the courts to take action.
Some states have already put the issue of same-sex marriage to a public vote. That list includes California, where a voter-approved prohibition on gay marriage was overturned this year by the U.S. Supreme Court.
Twenty-nine states constitutionally limit marriage to between a man and a woman, and 13 states allow for same-sex marriage, according to the National Conference of State Legislatures.
The remaining eight states either do not have a concrete stance on gay marriage, as in New Mexico’s case, or offer state-level spousal rights to same-sex couples.