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Judge: Gay marriage bans unconstitutional

SANTA FE, N.M. — New Mexico laws that seem to prohibit same-sex marriage are unconstitutional and cannot be enforced, state District Judge Alan Malott ruled Monday.

The Bernalillo County-based judge went on to order Bernalillo County Clerk Maggie Toulouse Oliver and Santa Fe County Clerk Geraldine Salazar to immediately begin issuing marriage licenses to same-sex couples.

Oliver said she planned to begin issuing licenses to same-sex couples today. Salazar started issuing licenses in Santa Fe last week after a preliminary order by District Judge Sarah Singleton stemming from a separate lawsuit.

Malott said his order underscoring legal protections for same-sex marriage in New Mexico was necessary to ensure the state doesn’t extend a long history of discrimination.

“Denial of the right to marry continues this unfortunate, intolerable pattern and establishes irreparable injury on” same-sex couples denied the right to marry, Malott wrote.

The court order makes Bernalillo County – the state’s most populous county – the third in New Mexico to issue marriage licenses to same-sex couples. The county clerk in Doña Ana County began issuing licenses two days before the clerk in Santa Fe.

Malott’s order Monday resolved a lawsuit filed by the American Civil Liberties Union of New Mexico against the Santa Fe and Bernalillo county clerks on behalf of six same-sex couples who previously were denied a marriage license in one of the two counties.

Neither the county clerks nor the state Attorney General’s Office voiced any opposition in a hearing Monday before Malott issued his order.

ACLU New Mexico Legal Director Laura Schauer Ives said Malott’s ruling will stand unless it’s appealed. For the order to be reviewed by the state Supreme Court, a formal appeal must be filed, she said.

“Somebody can this week jump into this lawsuit and say, ‘Whoa, you can’t just agree to all that,’ which is what the state did,” Schauer Ives said. “… It will be tested. How that happens, I can’t say with certainty.”

Oliver said her office has no plan to appeal.

“I think the outstanding question is if it would be appealed, who would appeal it?” Oliver said. “I’m not intending to appeal this decision.”

It’s unclear whether the order extends to other counties beyond the Bernalillo and Santa Fe county clerks’ offices, who were ordered by Malott to issue marriage licenses, Schauer Ives said. While the ruling could be interpreted to allow other county clerks to issue same-sex marriage licenses, it may not rise to the level of a court order for other counties, she said.

Sen. Bill Sharer, R-Farmington, a critic of same-sex marriage who is urging Republican legislators to file a lawsuit attempting to stop the issuance of same-sex marriage, said the District Court order overstepped its legal authority on Monday.

“It is up to the New Mexico state Legislature, with the consent of the governor of New Mexico, to make laws and for county clerks and district court judges to abide by them. They do not make the laws,” Sharer said in a statement. “It is inexplicable how a district court just today discovered a new definition of marriage in our laws, when our marriage law has not been changed in over a century.”

Malott’s order came after a hearing in the case that was scheduled to address only preliminary issues.

Kimberly Kiel and her partner Rose Griego, the Santa Fe couple who first filed suit against Bernalillo County for refusing to issue a marriage license, said they were optimistic the judge would rule in their favor but had not expected it to happen Monday.

“We had a sense this was coming, but this actually was more than we were expecting,” Kiel said. “Having the state recognize this as well is really important today.”

Kiel and Griego said they now plan to get a marriage license from the Bernalillo County clerk’s office today.

Judge Malott’s order