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Factions line up for fight over same-sex marriage in N.M.

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SANTA FE – The stage is set for a high-profile hearing next month on the legality of gay marriage in New Mexico, after a flurry of legal briefs were filed Monday with the state Supreme Court.

Republican state legislators, three county clerks, more than a dozen University of New Mexico School of Law professors, the American Civil Liberties Union and other state and national groups weighed in on the last day to file written arguments, giving the state’s five Supreme Court justices plenty to digest before the Oct. 23 hearing.

More than 900 marriage licenses have been issued to gay and lesbian couples across New Mexico since some county clerks began issuing the licenses last month, but the state’s highest court could decide whether those marriages are upheld.

“The validity of these marriages has not been definitively established; it is inarguably in the public interest to settle this matter now so these persons can move forward confident in their status as married couples,” attorneys for Santa Fe County Clerk Geraldine Salazar wrote in their legal brief.

Opponents of same-sex marriage are urging the Supreme Court to declare that state law – which requires “male” and “female” to be listed on marriage application forms – prohibits same-sex marriage.

Roughly two dozen current and former GOP lawmakers, represented by a Christian law group called Alliance Defending Freedom, filed a friend-of-the-court brief with the Supreme Court that staked out that position, according to The Associated Press.

The legislators claimed that “the judiciary should exercise caution when asked to divine fundamental and important constitutional rights not expressly provided in the Constitution’s text.”

In contrast, the attorneys for six same-sex couples who filed a lawsuit earlier this year against the Bernalillo County and Santa Fe County clerks argued that denying the couples access to marriage benefits was unconstitutional.

“Without access to marriage, same-sex couples in New Mexico cannot enter into an officially recognized and protected family relationship, leaving them with no way to assume full responsibility for one another and no meaningful protection against being treated as legal strangers by third parties and the state,” the attorneys argued in their brief.

The attorneys representing the same-sex couples are from the ACLU-New Mexico, the National Center for Lesbian Rights and local law offices.

At least eight New Mexico counties – Bernalillo, Santa Fe, Doña Ana, Taos, Valencia, Los Alamos, San Miguel and Grant – have begun issuing marriage licenses, either voluntarily or in response to lower court orders.

The gay marriage movement has been fueled by those lower court rulings, including an Aug. 26 order by District Judge Alan Malott of Albuquerque that compelled the Bernalillo County and Santa Fe County clerks to issue marriage licenses to same-sex couples.

The state Supreme Court decided to hold a hearing on the high-profile issue after the state’s 33 county clerks requested a decisive, statewide ruling. However, there is no guarantee the state’s highest court will issue an immediate opinion.

Due to the expected interest in the case, the court is planning to make two overflow rooms available for those attending the hearing, the court’s clerk said Monday.

New Mexico is unique in that it has not explicitly allowed or disallowed same-sex marriage – via legislation, a popular vote or a high court ruling, according to experts. That has led to a range of legal interpretations.

In its brief filed Monday, Attorney General Gary King’s office asked the Supreme Court to declare the denial of marriage licenses to same-sex couples as unconstitutional.

King’s analysis claims there is no “rational basis” on which to treat same-sex couples differently from heterosexual couples.

Meanwhile, Gov. Susana Martinez, who has said she believes marriage should be between a man and a woman, has not intervened in the case. Martinez has repeatedly called for a statewide vote on whether to legalize gay marriage.

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