News Law and Policy

New Mexico Poised to Enact Marriage Equality

Jessica Mason Pieklo

The New Mexico Supreme Court ordered a hearing to resolve whether or not county clerks can move forward with issuing marriage licenses to same-sex couples.

Another state took a step forward toward ensuring marriage equality Friday as New Mexico’s highest court set an October 23 hearing date to determine whether marriage licenses can be issued to same-sex couples in the state.

The court issued the order a day after all 33 of New Mexico’s counties and clerks filed a petition asking the New Mexico Supreme Court to rule whether a district judge in Albuquerque was correct last week in holding it was unconstitutional to deny marriage licenses to same-sex couples based on a 1972 voter-approved equal rights constitutional amendment that prohibits discrimination “on account of the sex of any person.”

The dispute arose late August when the Dona Ana County clerk determined, based on this summer’s rulings on the Defense of Marriage Act and Proposition 8 from the U.S. Supreme Court, that the county could issue marriage licenses to same-sex couples. Seven other counties have followed Dona Ana County in issuing marriage licenses to same-sex couples, or are planning to.

Same-sex marriage is neither explicitly authorized nor prohibited in New Mexico. But current and previous state attorneys general have argued the state has a de facto ban on same-sex marriage because state statutes contain a marriage license application with sections for male and female applicants, as well as other statutory references to “husband” and “wife.” Lawmakers this year tried, and failed, to change the state constitution to explicitly recognize marriage equality. Previous attempts to ban same-sex marriage and to recognize domestic partnerships have also failed in the state.

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A ruling from the New Mexico Supreme Court would set a precedent statewide for how county clerks are to proceed in issuing marriage licenses.

The fight for marriage equality in New Mexico stands in stark contrast to the battle over abortion access, currently underway in Albuquerque, where out-of-state protesters have descended on the city to try and push a local ban on abortions after 20 weeks. In August, anti-choice activists obtained enough signatures on a petition to ban the procedure at the local level and put the matter up to a city council vote. The Albuquerque campaign was first organized by members of Operation Rescue in 2010.

Parties have until September 23 to submit written arguments to the New Mexico Supreme Court. The court could issue a ruling immediately following arguments, though it is more likely it will take the matter under advisement and rule sometime later. But the early hearing date and quick response suggests the court’s interest in a quick resolution of the issue.

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