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Tough questions about same-sex marriage in NM Supreme Court

Kitty Randall, left, and Elizabeth Godfrey, both of Jemez Springs, stand outside the state Supreme Court on Wednesday after oral arguments on same-sex marriages. Randall and Godfrey have been together for 20 years and married two years ago in Iowa. (eddie moore/journal)
Kitty Randall, left, and Elizabeth Godfrey, both of Jemez Springs, stand outside the state Supreme Court on Wednesday after oral arguments on same-sex marriages. Randall and Godfrey have been together for 20 years and married two years ago in Iowa. (eddie moore/journal)
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Copyright © 2013 Albuquerque Journal

Watch the full two hour NM Supreme Court hearing on gay marriage

SANTA FE – Highly anticipated arguments on same-sex marriage in New Mexico brought tough questions Wednesday from state Supreme Court justices, who explored religious, political and legal issues during a historic two-hour hearing.

The court did not issue an immediate ruling on whether gay marriage should be recognized as legal across the state. However, justices peppered an attorney representing Republican legislators with pointed queries about his argument against gay marriage.

“Why shouldn’t you be able to marry the person you choose?” asked Justice Richard Bosson.

Justices also questioned, or commented on, the GOP attorney’s claim that legalizing same-sex marriage would lead to fewer opposite-sex couples wanting to tie the knot.

Nearly 170 people packed into the Supreme Court chambers and a pair of overflow rooms for Wednesday’s hearing. Court staff had to turn away people who did not arrive in time to secure a seat.

In addition, the hearing on gay marriage was the first time the court’s proceedings have been webcast live. The court authorized television stations to stream video online.

It’s unclear when a ruling in the high-profile case will be issued by the court, though some attorneys said they expect a decision could be made quickly.

Plaintiffs in the case, who traveled to Santa Fe from around the state, sounded confident after the hearing ended.

“I’m optimistic about the outcome because there’s a strong indication that most New Mexicans support same-sex marriage,” said Monica Leaming of Farmington, while standing next to her wife, Cecilia Taulbee.

“It’s a pivotal day in New Mexico history, and to be part of that is an honor and is very exciting,” Leaming said.

Meanwhile, a prominent opponent of gay marriage said after the hearing that he believes New Mexico voters should be allowed to weigh in on the same-sex marriage issue, regardless of how the Supreme Court rules in the coming weeks.

“I think the most important thing here is, no matter what their decision is, the issue will not be settled until the people speak,” Sen. William Sharer, R-Farmington, told reporters.

Sharer said he plans to introduce a constitutional amendment proposal during New Mexico’s upcoming 30-day legislative session, which convenes in January, that would limit marriage to between one man and one woman.

Different views

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

Maureen Sanders, an Albuquerque attorney representing six same-sex couples, told the court Wednesday that marriage should be a “fundamental right” for all adults, regardless of the spouse’s gender. That argument is largely based on New Mexico’s Equal Rights Amendments, which was adopted in 1972, and other constitutional language.

However, James Campbell, an Arizona-based lawyer who argued on behalf of the Republican legislators, said New Mexico law clearly defines marriage as between a man and a woman. He urged Supreme Court justices to uphold that definition.

“The government has an interest in channeling naturally procreating relationships into committed unions,” Campbell said.

Bosson and Supreme Court Justice Charles Daniels noted that state marriage benefits do not hinge on whether a couple has children.

“You get to file a joint tax return in New Mexico, whether or not you have children,” Daniels said.

In addition, Justice Barbara Vigil asked the attorney for empirical evidence that children raised by same-sex couples are not as well-adjusted as those raised by heterosexual couples.

Daniels later suggested the opposition to same-sex marriage is fueled by religious beliefs, which he said should not shape state policy.

“What we can’t ignore is reality in the real world,” Daniels said.

Two lawyers from Attorney General Gary King’s office spoke during Wednesday’s hearing, claiming the state Constitution’s equal rights provisions should be construed as having “evolved” to allow for same-sex marriage.

They pointed out that recent attempts in the Legislature to either allow or prohibit gay marriage have been unsuccessful.

Building controversy

The Supreme Court hearing Wednesday followed a frenzied two months of same-sex marriage developments.

After denying previous requests to intervene in gay marriage lawsuits, the state’s highest court finally decided to hold oral arguments after the state’s 33 county clerks appealed a lower court ruling in hopes of getting a decisive, statewide decision.

That lower court ruling, issued Aug. 26 by District Court Judge Alan Malott of Albuquerque, compelled county clerks in Bernalillo and Santa Fe counties to start issuing marriage licenses to gay and lesbian couples.

In all, a total of eight New Mexico counties – Doña Ana, Valencia, Taos, San Miguel, Grant and Los Alamos, in addition to Bernalillo and Santa Fe – have begun issuing marriage licenses to same-sex couples in the past two months, either voluntarily or in response to the Malott ruling or other lower court orders.

By the numbers, 1,466 marriage licenses have been issued to same-sex couples in New Mexico – including 548 in Bernalillo County – since August.

However, same-sex couples are still unable to get a marriage license in 25 of the state’s 33 counties and GOP lawmakers have sued at least four county clerks for issuing licenses.

“In New Mexico today, there are two status quos,” said Daniel Ivey-Soto, an Albuquerque state senator who addressed the court on behalf of the state’s county clerks. “There’s a tremendous amount of confusion out there.”

The state’s shifting landscape on gay marriage mirrors a national trend.

The U.S. Supreme Court earlier this year struck down the federal Defense of Marriage Act, and other states have recently sanctioned same-sex marriage. Most recently, New Jersey became the 14th state in the nation to allow gay and lesbian unions earlier this week.

Leaming and Taulbee, who traveled to Bernalillo County to get married following Malott’s ruling, said Wednesday they are proud to be part of a national movement.

“We realize this is not just about us,” Taulbee said. “This is about our state and our nation.”

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