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Thursday, January 06, 2011
Gay Marriage Challenge Already in Works
By Deborah Baker
Journal Staff Writer
SANTA FE — Outlawing gay marriage already was headed to the Legislature's inbox, but an attorney general's opinion supporting the validity of some same-sex unions could give the issue a higher profile.
Attorney General Gary King said this week that New Mexico courts likely would recognize the legality of same-sex marriages performed in other states or countries where they're legal.
The opinion, while nonbinding, was praised by same-sex marriage supporters as logical and helpful to couples wondering about their status.
Recognizing such marriages "strengthens families; it gives you the tools and the security to build a life together and protect your family," said Lynn Perls, an Albuquerque lawyer who specializes in family law.
But Sen. William Sharer, R-Farmington, said Wednesday that King's opinion has galvanized opponents of same-sex marriage and could help his efforts to get a measure through the 2011 session making such marriages illegal.
"People are energized," said Sharer, who repeatedly, over the past decade, has pushed legislation defining marriage as between a man and a woman.
The lawmaker said he had planned to reintroduce the so-called Defense of Marriage Act even before King's office issued the opinion.
He plans to propose both a bill changing state law and an amendment to the state Constitution in the legislative session that begins Jan. 18. They would say the only marriages valid in New Mexico are the unions of one man and one woman.
"I think we would have no obligation to recognize marriage not in accordance with that. ... I think the public policy would be very clear at that point," Sharer said.
King's opinion noted that New Mexico law doesn't bar recognition of out-of-state same-sex marriages. And he said the state recognizes valid marriages from other jurisdictions — even if New Mexico doesn't allow such marriages — as long as there's not a "sufficiently strong or overriding public policy" against them.
A constitutional amendment, which would have to be approved by voters statewide, might be considered evidence of a strong public policy, said Kenneth Upton, a lawyer in Dallas with Lambda Legal. The national organization provided background material that was given to King's office as it weighed the issue.
Upton said even in states where attorney general opinions are not legally binding, they can be "extremely persuasive" with administrators and judges.
King said in his opinion that he could not predict how a New Mexico judge would rule on the issue.
"The next step is, we may see some litigation. That would not surprise me," Upton said.
According to Upton, five states — Iowa, Connecticut, Massachusetts, New Hampshire and Vermont — and the District of Columbia marry same-sex couples, while most states have laws or constitutional provisions that preclude the performance or recognition of same-sex marriages.
New Mexico is one of three states where the law doesn't expressly authorize or prohibit same-sex marriages, he said.