The debate over same-sex nuptials continues to heat up in New Mexico as a total of eight counties have positioned themselves to give marriage license to gay couples and officials on both sides have filed lawsuits seeking a resolution to the issue.
On Thursday, all 33 New Mexico county clerks filed a petition with the State Supreme Court asking justices for clarification on whether granting marriage licenses to gay couples is warranted under the state constitution.
“Intervenor Clerks as a group cannot issue marriage licenses to same-sex couples with confidence of the legality of their actions without an opinion from this Court as to the responsibility and obligation of the County Clerk and legal validity of the marriage licenses being issued, including direction or authority to change the statutory forms,” the petition states.
The Supreme Court had previously decided in response to a petition filed by the National Center for Lesbian Rights and the American Civil Liberties Union that it wouldn’t immediately hear the issue of same-sex marriage, but wanted to lower courts to decide the issue on a expedited basis for a final judgment.
Pat Davis, who’s gay and executive director of ProgressNow New Mexico, told the Washington Blade the organization welcomes the move from county clerks.
“We’ve said all along that that’s the end goal of all, or the gold-standard answer that settles this once and for all,” Davis said. “So, we applaud it. We know the clerks have been looking for this as early as 2004 when the Sandoval County Clerk originally issued marriage licenses on their own, way back when. So from our perspective, it’s long overdue.”
Clerks say resolution from the New Mexico Supreme Court is needed in the wake of a decision from District Judge Alan Mallot that the state constitution requires clerks in in Bernalillo and Santa Fe counties to give marriage licenses to gay couples.
They note Mallot’s reading of the state constitution differs from two attorneys general who say same-sex marriage is unavailable under current law. They also question Mallot’s reading of how state constitution prohibits discrimination against gay couples when it explicitly prohibits discrimination based on sex, but not sexual orientation.
Davis said ideally he’d like to see the court accept the petition “very soon” to give clerks assurances on how to act.
“We’ve seen our Supreme Court act in as little as a week, and while that’s not likely in this case, it would not be surprising to a lot of us if this were settled before the end of September,” Davis said.
Meanwhile, the number of clerks in New Mexico that have decided to give out marriage licenses to gay couples â either under their own volition or under court order â continues to grow.
District Judge Sheri Raphaelson this week ordered Los Alamos County to give marriage licenses to gay couples, making it the eighth county in New Mexico where same-sex marriage is available. According to an analysis from AMERICAblog’s John Aravosis, the decision means 58.5 percent of New Mexico’s population has marriage equality.
Davis said the number of counties issuing marriage licenses to gay couples demonstrates that marriage equality is coming to the entire state at high speed.
“So, at this point, more than half of the residents of the State of New Mexico has access to the freedom to marry,” Davis said. “The ones that remain are in places where some of the clerks have indicated they would if their district court said they could. Ultimately, they all say they will if the Supreme Court does it.”
Still, Republicans have finally gone through with their announced plans to file lawsuits in New Mexico to stop same-sex marriages from happening. They’ve filed lawsuits in Dona Ana, San Miguel and Valencia counties â the three counties that are issuing marriage licenses to gay couples on their own accord as opposed to a court order.
In the petition filed in Dona Ana County, Republicans, including anti-gay State Sen. Willam Sharer, argue that the clerk should stop issuing marriage licenses because the county is operating outside state law.
“The Legislature is explicit in its prescription of the method of issuing marriage licenses; applicants must fill our an application that is substantially identical as the uniform marriage license application form, which requires both a male and female applicant,” the petition states. “Respondent has not been granted authority to issue marriage licenses in any manner that doesn’t correspond to those instructions.”
Davis said Republicans’ decision to file the petitions only in counties giving marriage licenses to same-sex couples without court order may, in fact, affirm the actions of these county clerks.
“We think it’s going to be pretty ironic, actually, that the Republican challenge may actually work to expand the legal protection for marriage equality across the state,” Davis said. “We haven’t found a single person yet who’s following this case and has any sense in constitutional law in New Mexico that thinks they’re going to prevail.”
In the three-page order, the court sets arguments for Oct. 23 in addition to inviting the six plaintiffs couples in the lawsuit filed by the National Center for Lesbian Rights and the American Civil Liberties Union to take part in the case. They must file a response by Sept. 23.
Peter Simonson, executive director of the ACLU New Mexico, said in a statement he hopes the hearing will “lead to a speedy decision” resulting in marriage equality for the entire state.
“Now is the time for New Mexico to treat same-sex couples with the same dignity and respect as all other couples and fully respect their lifelong commitments to each other and their families,” Simonson said.
Shannon Minter, legal director for the National Center for Lesbian Rights, told the Washington Blade his organization welcomes the hearing, but when a final decision will be handed down is unknown.
“We donât know when the court will rule, but clearly they recognize the importance of the issue and have set an expedited briefing and argument schedule,” Minter said. “They could issue a decision anytime after the argument.”
On Thursday, all 33 New Mexico county clerks joined together in filing a petition asking the New Mexico Supreme Court for a final judgment on marriage equality in the state after eight county clerks â some under court order, some under their own volition â started giving marriage licenses to same-sex couples.
The month of October 2013 could go down in history as a milestone in the marriage equality movement.
In addition to New Jersey becoming the 14th state in the country to make same-sex marriage legal, states across the country in recent days saw developments in the legislatures and the courts on marriage equality that could expand that roster of equality states by the end of the month.
James Esseks, director of the LGBT project for the American Civil Liberties Union, predicted during a conference call with reporters last week the activity on same-sex marriage this month could create another “marriage moment.”
“I think we are approaching another marriage moment this fall with potential developments in three to four states coming soon,” Esseks said.
The action on marriage comes on the heels of the filing of new litigation both in federal and state courts as well as new legislative efforts seeking marriage equality initiated after the Supreme Court ruled on the Defense of Marriage Act and California’s Proposition 8 in June.
Dan Pinello, a political scientist at the City University of New York, said the activity on marriage equality at this time is in part the result of the Supreme Court’s actions.
“The high court’s decision unleashed a floodgate of pent-up demand in the LGBT community that is finding true expression in a tidal wave of federal litigation,” Pinello said. “The ruling also prompted an increased awareness of newly recognized constitutional rights among federal judges in the lower courts. The outcomes of all this legal activity will emerge over the next several years.”
The New Mexico Supreme Court heard oral arguments on Wednesday in a case brought by all 33 New Mexico clerks, state district courts and a group of same-sex couples seeking a determination on whether state law permits same-sex marriage.
The arguments in the case, Griego v. Oliver, were divided into two portions. The first examined whether the current statutory scheme for marriage under New Mexico law already allows same-sex marriage because portions of it are gender-neutral. In the second, attorneys made their case on whether same-sex couples have a guaranteed right under the state constitution to marry regardless of what the statute says.
Representing Republican lawmakers seeking to prohibit same-sex marriage in New Mexico was attorney James Campbell, who argued that only the legislature has authority to legalize marriage rights for gay couples. Campbell maintained marriage under New Mexico law is reserved for opposite-sex couples because “those unions, unlike same-sex unions, have a natural ability to procreate.”
Campbell also argued that the court shouldn’t determine gay people should be considered a suspect class because they enjoy political power. The legalization of same-sex marriage through state legislatures as well as the Democratic Party and President Obama’s endorsement of same-sex marriage, Campbell said, is evidence of this political power.
Representing the views in court of District Judge Alan Mallot, who had previously ruled that same-sex couples can marry because of the gender-neutral language in the marriage law, was attorney Daniel Ivey-Soto.
Attorney General Gary King sent two attorneys to argue a more middle-ground argument. Assistant Attorney General Scott Fuqua argued that the current gender-neutral statute doesn’t permit same-sex marriage, but Assistant Attorney General Sean Cunniff maintained gay couples should be allowed to marry under the equal protection provisions under the state constitution.
Same-sex couples were represented by attorney Maureen Sanders, who articulated a similar view. She argued the gender-neutral law doesn’t allow gay couples to marry in New Mexico, but said “denying same-sex couples the right to marry is a violation of the New Mexico Constitution.”
Sanders also argued gay people should be considered a suspect class. The court shouldn’t look to the recent advancement in LGBT equality, she said, but the long history of discrimination the LGBT community has experienced.
Justices appeared skeptical of the idea of continuing to ban same-sex couples from marrying in New Mexico. In response to Campbell’s argument that marriage is for procreation, Chief Justice Charles Daniels noted many benefits related to marriage aren’t given to couples based on whether they’ve had children.
Despite hopes that the court would issue a ruling on marriage equality at the conclusion of the arguments, justices signaled as they began they would need more time. It’s unclear when a decision could come down, although it could be a matter of weeks.
The federal marriage equality case that is closest to the Supreme Court is also seeing movement as proponents of marriage equality â following the lead of Lambda Legal, which is responsible for the lawsuit â were set to weigh in on bringing marriage equality to Nevada.
On Oct. 18, Lambda Legal filed a 100-page brief before the U.S. Ninth Circuit Court of Appeals in the case of Sevcik v. Sandoval, a lawsuit the organization filed last year. Because the case is now before an appellate court, it’s the most advanced lawsuit that’s pending before federal courts.
The opening brief makes use of the U.S. Supreme Court decision against the Defense of Marriage Act by arguing that Nevada’s ban on same-sex marriage deprives gay couples of the crucial benefits just as the anti-gay federal law had done.
“By foreclosing same-sex couples from marriage, Nevada inflicts virtually the same collection of federal harms and deprivations on unmarried same-sex couples as DOMA previously did, since nearly all federal benefits are unavailable to unmarried couples, regardless of whether they are registered domestic partners,” the brief states.
A major component of the argument that Lambda makes against the ban on same-sex marriage is the state’s domestic partnership system is inadequate for gay couples even though it provides them the legal equivalent of marriage.
“Relegating same-sex couples to registered domestic partnership is no remedy,” the brief states. “That novel, inferior status qualifies unmarried same-sex couples for virtually no federal benefits, and instead designates same-sex couples as second-class citizens and subjects them to a host of practical difficulties and vulnerabilities.”
Accompanying the opening brief is a motion to the court for permission to file another brief no longer than 26,500 words for “an adequate exposition of the plaintiff couple’s claims.”
Friend-of-the-court briefs in favor of marriage equality were also due in the case on Wednesday. ThatÂ marks the opportunity for the Obama administration to weigh in on the lawsuit by filing its own friend-of-the-court brief in the case. Lambda has previously said it would “welcome” a brief from the U.S. Justice Department in the case, but as of Tuesday had no information on whether one would be forthcoming.
All eyes will be on the Illinois Legislature in the coming days as lawmakers return for a “veto session” that will likely include a vote in the State House on marriage equality.
On Tuesday, the first day of the veto session, supporters held a “March on Springfield” to urge passage of the marriage equality legislation. Speakers at a rally held near the State Capitol Building included Gov. Pat Quinn and U.S. Sen. Richard Durbin (D-Ill.).
According to Buzzfeed, Durbin invoked the Supreme Court decision against DOMA while speaking before the estimated 2,300 attendees about passing marriage equality legislation.
âNow that the Supreme Court has ruled, I say to members of the Illinois House of Representatives, you have an awesome and historic decision,â Durbin said. âWill you offer to everyone married in our state â regardless if straight, gay, lesbian, whatever â will you offer them the same federal benefits, or will you discriminate against some.â
The regular session of the legislature concluded in May, to the dismay of supporters of same-sex marriage, without a vote on same-sex marriage legislation in the House that was earlier passed in the Senate. Gay State Rep. Greg Harris declined to bring the legislation to a vote because he believed it lacked sufficient support for passage.
Bernard Cherkasov, CEO of Equality Illinois, expressed confidence that lawmakers would act during the veto session to pass the legislation based on recent polling data from Fako & Associates in Lisle, IL, showing a 12-point margin in support of marriage equality.
“Amongst key constituencies like African Americans, there’s a 20-point spread, amongst Latino voters, there’s a 30-point spread, amongst American Catholics, there’s a 30-point spread,” Cherkasov said. “There’s strong business support. Illinoians expect lawmakers will do their job and the pass the bill.”
Because the legislature in is in a veto session, different rules apply to passing legislation. A bill that would go into effect immediately, as the Senate-passed marriage equality legislation does, would require a supermajority of 71 votes in the House for passage. But bills that go into effect at a later date need only a simple majority of 60 votes for passage. The veto session consisted of two days this week, followed by a break, and another three days when lawmakers return on Nov. 5.
Cherkasov said the bill is “definitely within striking distance” in the House for votes to passage under the lower 60-vote threshold, which he said could be arranged by amending the House bill to go into effect on June 1 and passing that bill in the Senate.
Asked whether he wants the bill to come up for a vote during the veto session regardless of whether supporters think it has the necessary votes, Cherkasov said, “I do believe that if it came to the floor that it would pass.”
Advocates are pursuing same-sex marriage legislation in Illinois as a state lawsuit seeking marriage equality in the state, Darby v. Orr, is pending in Cook County Circuit Court.
Efforts to pass same-sex marriage legislation are also underway in Hawaii, where Gov. Neil Abercrombie has called for a special session of the legislature starting Oct. 28 for the purpose of debate and passage of marriage equality.
Donald Bentz, executive director of Equality Hawaii, said he’s “optimistic” the session will lead to marriage equality in the Aloha State because of stories of “love and commitment” heard by legislators.
“Polls indicate that the majority of Hawaii’s residents support marriage equality and are buoyed by the growing list of business, faith, political and nonprofit leaders who are standing up in support of the freedom to marry,” Bentz said.
Depending upon the length of time the legislature chooses to debate the marriage bill, the special session could go as quickly as five working days or take two full weeks.
Bentz said the marriage equality legislation enjoys “a wide margin” of support in the Senate, but not so much in House. A vote tally conducted by the Honolulu Civil Beat last month found that 26 House members support the legislation. Passage of the bill in that chamber requires 27 votes.
Since the time that article was published, Bentz said State Rep. Karen Awana has gone on record as a “no” vote, but State Rep. Mark Takai has come out as a “yes” vote. That would give the bill the 27 votes necessary for passage.
Advocates are pursuing same-sex marriage legislation in Hawaii as litigation seeking marriage equality in the state, Jackson v. Abercrombie, is pending alongside the Nevada lawsuit in the Ninth Circuit.
The most recent lawsuit seeking marriage equality in the federal court system was filed on Tuesday by the National Center for Lesbian Rights on behalf of four legally married same-sex couples seeking recognition of their unions.
The lawsuit, known as Tanco v. Haslam, was filed by the National Center for Lesbian Rights and private attorneys Abby Rubenfeld, Maureen Holland, Regina Lambert along with the firm of Sherrard & Roe and is pending before the U.S. District Court in the Middle District of Tennessee.
Shannon Minter, NCLR’s legal director, said the lawsuit is a useful addition to other cases pending in 19 other states because it helps draw attention to the lack of LGBT rights in the South.
“We think it is important to bring cases that highlight the damage that is being caused by discriminatory state marriage bans across the country, including especially in southern states,” Minter said. “I am very hopeful we will obtain a positive result in this case, which would be hugely beneficial to LGBT people in Tennessee, and also be a huge boost to creating even more positive national momentum.”
One couple in the lawsuit, Dr. Valeria Tanco and Dr. Sophy Jesty, is expecting their first child this spring and is worried state law won’t recognize them both as legal parents. Another couple, Sgt. Ijpe DeKoe and Thom Kostura, married just before DeKoe was deployed for a tour of duty in Afghanistan.
The litigation is one of two cases seeking marriage equality in federal courts lying within the U.S. Sixth Circuit Court of Appeals. The other case is the federal litigation pending before the district court in Michigan.
The attorney general of New Mexico has become the latest chief legal authority in a state to declare he won’t defend its marriage law in court.
In a 29-page filing on Tuesday, Attorney General Gary King said New Mexico’s marriage law is unconstitutional because the state constitution’s guarantee of equal protection to citizens demands same-sex couples “be permitted to enjoy the benefits of marriage.”
“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 is flatly unconstitutional,” King said.
King issued the opinion in the case of Hanna v. Salazar, a state lawsuit that the National Center for Lesbian Rights and the American Civil Liberties Union of New Mexico filed on behalf of Alexander Hanna and Yon Hudson, a Santa Fe couple seeking marriage rights.
Taking a line from the Obama administration’s views on the Defense of Marriage Act, King argues that same-sex couples should be permitted to marry in New Mexico because the marriage law should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional. The opinion maintains gay people are a suspect class based on their history of discrimination and their political powerlessness.
King, who’s expected to run for governor, is the latest in a series of state attorneys general who have elected not to defend a state’s marriage law on the basis that it prohibits same-sex couples from marrying. Others are California Attorney General Kamala Harris and Illinois Attorney General Lisa Madigan. Most recently, Pennsylvania Attorney General Kathleen Kane said she won’t defend her state’s marriage law against a lawsuit filed by American Civil Liberties Union.
Chris Stoll, a staff attorney for the National Center for Lesbian Rights, praised King for joining other attorneys general in deciding not to defend a law prohibiting same-sex couples from marrying.
âItâs great to see Attorney General King join many state officials around the country who have decided that excluding same-sex couples from marriage is indefensible under the constitution,” Stoll said. “These laws serve only to harm same-sex couples and demean their families and children while helping no one.â
The office of New Mexico Gov. Susana Martinez, a Republican who opposes same-sex marriage, didn’t respond to multiple requests from the Washington Blade to comment on King’s position.
But King’s opinion goes further than just determining that the state’s marriage law is unconstitutional. The filing also rejects an argument that same-sex marriage is already legal in New Mexico because the marriage law is gender neutral and doesn’t explicitly ban same-sex marriage.
King says the marriage law currently doesn’t allow same-sex marriage because the New Mexico’s statutory scheme uses both gender-specific and non-gender specific terms and because other states that had similar statutes determined gay couples can’t marry.
“State courts in New York, New Jersey, Massachusetts and Minnesota have considered analogous statutory schemes and concluded a mix of gender-specific and gender-neutral terminology does not convey the right for same sex couples to marry,” King writes.
The position that same-sex marriage is already legal in New Mexico under current law was a view put forward by Santa Fe officials, including the city’s mayor, David Coss, as part of a resolution approved in March.
Further, the attorney general rejects an argument that the New Mexico Supreme Court should issue a writ of mandamus so that plaintiffs in the case can receive a marriage license before the lawsuit ends. The couple had a filed a petition for mandamus as part of the relief.
“Issuing a writ of mandamus would to Respondent would thus represent an expansion of the jurisdiction conferred by Article VI [Section 3] and presents the very real threat of overloading the court’s docket with mandamus actions concerning any dispute a party has with any local and county official: county tax assessment protests, local zoning disputes, and any other dispute concerning only county or local officials would all be fair game,” King writes.
The opinion comes on the heels of a request from NCLR and ACLU for the New Mexico Supreme Court to issue a different writ of mandamus and take up the case so that it doesn’t have to proceed through lower courts. Stoll said that petition before the court is still pending.
“It asks the court to hold that the New Mexico Constitution requires the state to permit same-sex couples to marry, and also to respect the marriages of those married in other states,” Stoll said. “That petition remains pending alongside the one the attorney responded to yesterday.”