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Tuesday, August 10, 2010
Same-Sex Divorce Moves Forward
By Deborah Baker
Journal Staff Writer
SANTA FE — A state judge on Monday cleared the way for the first divorce proceedings for a same-sex couple in New Mexico — women who married six years ago when the Sandoval County clerk briefly issued licenses.
District Judge Sarah Singleton of Santa Fe rejected the argument that the marriage was void from the start because then-Sandoval County Clerk Victoria Dunlap lacked the authority to issue licenses to same-sex couples.
Singleton stressed that she was not ruling whether there is a constitutional right to same-sex marriages in her decision to allow Angela Maria Carrejo and Karla Janelle Haught to get divorced.
Rather, the judge said, the issue was whether what Dunlap did for eight hours on Feb. 20, 2004, was void from the beginning.
She concluded it was not, and she said it is too late now — six years later — to try to get Dunlap's actions voided.
"As of today, they are valid marriage licenses and certificates. ... So we have a marriage here that is going to result in a divorce," Amber Train, the attorney for Carrejo, said after the hearing.
Train described Singleton's ruling as one that "protects my client's interest but leaves open the issues that have a broader implication for the gay community at large."
At issue as the divorce case proceeds to trial is the division of community property, including real estate in Santa Fe and Rio Arriba counties, and spousal support sought by Carrejo, Train said.
Haught, a Santa Fe lawyer who represented herself — telling the judge it was "not my intention to become a poster child for gay marriage" — declined to comment after the ruling.
She had argued that she was never legally married, because same-sex marriage was not legal when the license was issued.
Haught also told the judge she and Carrejo were not the first same-sex couple of the 64 who married with Sandoval County licenses to split up, but the first "to make a complete spectacle of our breakup."
Singleton said Dunlap's issuance of licenses did not meet the legal criteria for voiding a government official's actions, including acting outside her authority.
"At most, what can be said is the clerk was negligent. She made a mistake of law," the judge said.
Singleton said the letter then-Attorney General Patricia Madrid wrote the day Dunlap was issuing the licenses, which said in her judgment that such licenses were invalid, was not legally binding.
"No action was taken by the AG or any government official to invalidate these licenses," the judge said.
Any efforts to void Dunlap's actions would have had to be done on a timely basis, she said.
There is no requirement in New Mexico law that marriage be between a man and a woman, and no language expressly excludes same-sex marriage, Singleton said. And no court has ruled on the issue.
But Singleton said a federal court ruling last week in California that overturned a ban on gay marriage did not have a bearing on the case before her.
The divorce case, she said, was not appropriate for deciding whether same-sex marriage is constitutional in New Mexico because that would require evidence to be taken on those issues.
Train said judges in other districts probably would look to Singleton's ruling if they were handling similar divorce requests from the Sandoval County group.
"It's not binding precedent, but it certainly could be persuasive to other judges," she said.
No date has been set for the trial in the divorce proceedings.
According to a document Haught filed with the court, she and Carrejo lived together until October 2008, when they separated. Carrejo filed for divorce in June 2009.
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