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AG says marriage laws conflict with Constitution

In taking office as state attorney general, Gary King took an oath to support the laws and Constitution of New Mexico. He also has a duty to represent the state before the New Mexico Supreme Court in cases where the state is a party or has interest.

So, what is King to do when he believes a law enacted by the state conflicts with the Constitution?

It’s a sticky wicket, and the wicket gets even stickier when it’s a hot-button political issue.

On the issue of same-sex marriage in New Mexico, King has decided not to defend the laws that appear to limit marriage to opposite-sex couples. He believes the laws violate the Constitution.


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In a brief filed this week with the Supreme Court, the attorney general said New Mexico marriage laws violate Article II, Section 18 of the Constitution, which says no person shall be denied equal protection of the laws.

“We believe that the unconstitutional arguments are the stronger arguments,” the attorney general told me.

Still, King said, he is working to ensure someone is appointed to make the counterargument that the state’s marriage laws are constitutional.

The Attorney General’s Office could commission legal representation for Republican Gov. Susana Martinez, an opponent of same-sex marriage, or a group of state legislators who want to defend the laws in court. King could also hire outside counsel for the job.

“It’s important that we present all the relevant arguments to the court,” the attorney general said.

Attorneys general in some other states also have declined to defend prohibitions on same-sex marriage.

The state Supreme Court currently has before it a case brought directly to the court by two Santa Fe men who were denied a marriage license. It isn’t clear whether the justices will rule on the issue of same-sex marriage or say the matter must first be decided in a state district court.

The Attorney General’s Office isn’t a party to the case, but the Supreme Court asked it to respond to the lawsuit. The brief filed by King contained his strongest comments so far on the constitutionality of the state’s marriage laws.


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“New Mexico’s guarantee of equal protection to its citizens demands that same-sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens,” the 28-page brief said.

“There is no doubt that Article II, (Section) 18 of the New Mexico Constitution requires the State to treat equally any of its citizens seeking legal recognition of their marriage, and that any statutory scheme interfering with that guarantee of equality is flatly unconstitutional.”

The argument boils down to this: Same-sex couples and opposite-sex couples are similarly situated when it comes to marriage – they want to marry for the same reasons – and the state can’t allow one group to marry while prohibiting marriage by the other group.

The legal argument has been used in court cases in other states, with bans on same-sex marriage declared unconstitutional in at least four of them. Courts, however, have upheld prohibitions on same-sex marriage in at least eight states.

About three dozen states have statutory and/or constitutional provisions that limit marriage to a relationship between a man and a woman. New Mexico doesn’t have a law that specifically prohibits same-sex marriage, but King has said there is little doubt that our marriage laws don’t permit it.

An analysis of marriage laws by King’s office released last month found that the laws were vulnerable to constitutional challenge.

King, a two-term attorney general and candidate for the Democratic gubernatorial nomination next year, has said he personally supports same-sex marriage.

Despite his legal position on same-sex marriage, King has advised county clerks to continue to restrict marriage licenses to opposite-sex couples until the matter is decided in the courts.

“I don’t believe it’s within my jurisdiction to tell someone not to follow a law passed by the Legislature because I believe it’s unconstitutional,” the attorney general told me.

While he argued in the brief filed with the Supreme Court that prohibiting same-sex marriage is unconstitutional, King also told the justices that the case on the issue currently before the court is legally defective and should be dismissed. That would mean a state district judge would first have to rule on whether same-sex couples have a constitutional right to marriage.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at or 505-992-6280 in Santa Fe. Go to to submit a letter to the editor.