By BARRY MASSEY
As hundreds of gay couples flock to courthouses around New Mexico to get married, they are closely watching the next steps to be taken by the state’s highest court, the Legislature and possibly voters to resolve lingering legal questions on the issue.
For now, six of the state’s 33 counties are issuing marriage licenses to same-sex couples and a number of other clerks say they’re waiting for a court order before they take similar steps.
What remains uncertain is when or how a legal challenge over same-sex marriage reaches the five-member Supreme Court. Justices on Wednesday rejected a request to take control of pending lawsuits over gay marriage and consolidate them before a single judge, representing a procedural setback for advocates who hoped it could provide a way for a speedy decision by the court to offer a uniform policy on gay marriage.
In the meantime, recently married couples aren’t caught in legal limbo, according to Antoinette Sedillo Lopez, a professor of family law at the University of New Mexico. She said Wednesday the marriages are legally sound and presumed valid.
“Folks who have received marriage licenses from county clerks and have gotten married with those licenses are just as married as anyone else,” said Brian Egolf, a lawyer who represented two Santa Fe men in a lawsuit that led to a court order directing county officials to issue them a marriage license.
Egolf said it’s highly unlikely a court would invalidate the recent marriages that have occurred in the past week since the Dona Ana County clerk, without a court order, started issuing licenses to same-sex couples. The practice soon spread. A judge directed the Santa Fe County clerk a few days later to grant licenses and this week a district court judge in Albuquerque declared that it’s unconstitutional to deny a marriage license to gay couples.
Questions over the legality of gay marriage have been simmering in New Mexico for years because state law doesn’t explicitly authorize or prohibit it. County clerks in the past have denied marriage licenses to same-sex couples in part because there is a marriage license application form in state statutes that contains sections for male and female applicants.
Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, said it’s important to resolve the legal questions to ensure that gay and lesbian couples receive benefits they’re entitled to as married couples, such as Social Security survivor benefits and the ability to file joint married tax returns.
“Until we know for sure that the federal government will recognize marriages in the state of New Mexico, whether or not couples here qualify for joint filing remains uncertain,” Simonson said. “It’s our contention that the federal government should recognize marriages now throughout the state regardless of what county someone gets married in.”
The path for moving the same-sex marriage legal fight to the Supreme Court remains unclear. No county clerk intends to appeal the recent orders that directed them to issue licenses.
A group of Republican legislators plans to file a lawsuit to stop clerks from issuing licenses to gay and lesbian couples, but their lawyer hasn’t decided where and when the case will be filed.
Another attempt to get the gay marriage question to the Supreme Court is planned by county officials. The governing board of the New Mexico Association of Counties, in response to a request from county clerks, agreed Wednesday to try to intervene in the gay marriage lawsuit in Albuquerque and then ask for a Supreme Court ruling.
Egolf had requested the Supreme Court to step in by consolidating all current and future lawsuits over the issue and have the justices assume control of them.
The court denied his request in a one-page order, saying it was moot but providing no detailed explanation. The request for consolidation of lower court cases came earlier last week before district judges in Santa Fe, Taos and Albuquerque issued rulings that ordered county clerks in those areas to start issuing marriage licenses to same-sex couples.
“Back to the drawing board,” Egolf said when asked about the court’s ruling.
How the Supreme Court would rule on the gay marriage issue is uncertain. But the justices unanimously decided last week that a commercial photography business owned by opponents of same-sex marriage violated an anti-discrimination law by refusing to take pictures of a gay couple’s commitment ceremony.
If the Supreme Court doesn’t soon resolve the gay marriage question, the issue almost certainly will surface in January when the Legislature meets for a 30-day session.
Republican Gov. Susana Martinez contends that voters should decide the issue through a possible constitutional amendment.
Martinez spokesman Enrique Knell said the governor “does think our current situation shows why it’s best for the voters to decide this issue–not a court, not politicians in Santa Fe, and not a patchwork of random county clerks. It would be best for voters to settle this issue.”