Friday, February 20, 2004
Sandoval County To Allow Same-Sex Nuptials
By Joshua Akers
Journal Staff Writer
New Mexico's same-sex couples wanting to marry need look no further than Sandoval County.
"At this point, my office is not aware of anything that would prohibit issuing marriage licenses for same-sex couples," Sandoval County Clerk Victoria Dunlap said Thursday.
Dunlap said she made the decision after asking for a county attorney's opinion.
Same-sex marriages have been banned in 38 states.
But Sandoval County attorney David Mathews said New Mexico law isn't clear on the issue and he was concerned that refusing to issue marriage licenses to same-sex couples could open the county to legal liability.
In San Francisco, more than 2,600 marriage licenses have been issued to same-sex couples since Feb. 12, when Mayor Gavin Newsom declared that the city would not prevent couples from marrying because of sexual orientation.
In November, the Massachusetts Supreme Court ruled that same-sex couples have a right to marry under the state constitution.
In New Mexico, Gov. Bill Richardson has said he opposes same-sex marriages.
Clerks in Santa Fe and Bernalillo counties say they would not issue same-sex marriage licenses.
The state Attorney General's Office has never been asked for an opinion on the issue, said Sam Thompson, spokeswoman for Attorney General Patricia Madrid.
Under state law, marriage is defined as a civil contract between contracting parties. It does not mention gender.
"Each couple desiring to marry in New Mexico shall obtain a license from the County Clerk ... " reads NMSA 40-1-10.
The only statute that mentions gender is a 1961 act that created the form used for marriage licenses. It asks for information about the male applicant and the female applicant.
But the Equal Rights Act of 1973 outlaws discrimination based on sex, Mathews said.
Sandoval's Dunlap said she asked for Mathews' opinion after a person called asking about same-sex ceremonies earlier this week.
The clerk's office doesn't perform marriage ceremonies but does issue about 50 marriage licenses a month. A license costs $25.
"If a couple applies, grant it," Mathews said. "From a practical point of view, you have to. There is nothing that just says man and woman."
However, he said that he didn't want Sandoval County to become a test case for same-sex marriage in New Mexico and that the county doesn't have a position on the issue.
"This is a statewide issue, and we need some guidance."
Santa Fe County Clerk Rebeca Bustamante turned down a same-sex couple who applied for a license in 1997 because of the 1961 act.
"My position is I took an oath to uphold the law, not change the law," Bustamante said Thursday. "I wouldn't do it because I just don't think I can."
Bernalillo County Clerk Mary Herrera said her office has no plans to issue marriage licenses to same-sex couples. Herrera cited the 1961 act as well.
The recent publicity over the issue has prompted some people to call her office asking about the local policy, she said.
"We're telling them we would not issue them here," Herrera said.
Bernalillo County Attorney Tito Chavez said that he would need to review any recent changes in the law but that "it would probably be my advice not to issue them."
Randy Van Vleck, general counsel for the New Mexico Municipal League, said his organization hasn't dealt with the issue.
"This issue has not come before us yet," he said. "It probably will, though."
Until Sandoval County receives a legal opinion from the attorney general, Dunlap said she will issue licenses to same-sex applicants.
"This has nothing to do with politics or morals. If there are no legal grounds that say this should be prohibited, I can't withhold it," she said. "This office won't say no until shown it's not permissible."
In August, Richardson said he opposed same-sex marriage but supported equal rights.
The governor and his staff could not be reached for comment Thursday.
Journal staff writer Dan McKay contributed to this story.