Court legalizes gay marriage in largest NM county – 3 more follow suit

Update — breaking news, 11:30am MDT 27 Aug: Two more counties, Valencia and San Miguel, have announced they will also begin issuing same sex marriage licenses, beginning immediately. This means that about 55% of New Mexicans now reside in marriage equality counties. GOP Legislators, led by NM State Senator Bill Sharer (R-Farmington), have said they plan to file a legal challenge, but have not yet done so. By way of background, it turns out Sharer has been behind repeated efforts to pass a legislative ban or amend the state constitution to ban same sex marriage.

Update 6:50pm MDT 27 Aug: A sixth county has joined the marriage equality bandwagon. Late in the afternoon, another judge ordered Taos county to begin issuing same sex marriage licenses. Taos county has confirmed they will comply beginning first thing Wednesday morning (28 Aug). Latest word from NM State Senator Sharer is he and his pack of GOP homophobes will petition the NM Supreme Court “in the next couple of days” to try to stop the same sex marriages. Presumably they’ll also try to have the licenses and marriage certificates issued so far declared invalid.

Update 5:20pm MDT 28 Aug: No additional news today, other than to report that “hundreds” of gay and lesbian couples are marrying and the news outlets have picked up “over half of all New Mexicans live in counties with same sex marriage.” One detail I ran across is that NM State Senator Bill Sharer apparently has his own blog. And oh my — it is simply awful. It has a grand total of three entries, all of them written in just the last week, and all of them bemoaning the fact there are happy gay people here in New Mexico getting married. One long and rambling post in which he attempts to de-gay famous gay historical figures such as Aristotle and Alexander the Great is especially funny, provided one can get past the nearly overwhelming incoherence of his writing. Based on this, I am now wondering if there’s much truth to his claims he and his GOP cohorts will mount anything like a coherent defense of their anti-gay bigotry in the courts.

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It feels almost like a juggernaut for New Mexico on the legalization of gay marriage and the extension of full marriage equality rights for gay and lesbian couples.

In short: Woohoo!!!

New Mexico District Court Judge Alan M. Malott’s ruling today could not be more clear: Denying marriage equality rights to same sex couples is blatantly unconstitutional and unenforceable under New Mexico state law. He has ordered that marriage licenses be issued by the Bernalillo county clerk to couples regardless of gender, beginning immediately.

As to why Judge Malott ordered his ruling to take effect right away, he said, “There is no benefit to the parties or the public interest in having this matter progress through a lengthy path of litigation while basic constitutional rights are being compromised or denied on a daily basis.”

For reference, Bernalillo is the county that includes the city of Albuquerque, and is the most populated in the entire state — nearly 700,000 total residents, out of a state total of a little over 2 million.

This is a blockbuster ruling. Even though Judge Malott’s jurisdiction in the case only covered Bernalillo county, it was clear from the forceful language of his from-the-bench ruling that he fully expects marriage equality to become a reality throughout New Mexico very soon.

Bernalillo county must join Santa Fe in issuing licenses

At 3pm MDT this afternoon in Bernalillo District Court, there was a hearing before Judge Malott, similar to the one in Santa Fe county last week. The earlier hearing resulted in State Judge Sarah Singleton ordering that county to start issuing marriage licenses to same sex couples.

Gender-neutral marriage license for New Mexico (KOAT.com)

Gender-neutral marriage license for New Mexico (KOAT.com)

Bernalillo County Clerk Maggie Toulouse Oliver has said her office has already ordered 1,000 of the new gender-neutral licenses to be printed. Oliver has said, “I look forward to the day that we can issue marriage licenses to same sex couples in Bernalillo County.” Looks like they’ll be needed very soon — as in 8am Tuesday morning, when they plan to begin accepting applications from same sex couples.

State-wide recognition update

In a related case also heard by Judge Malott (who combined proceedings to save time, it would appear), Angelique Neuman and Jen Roper were hoping for a summary-judgment ruling today to determine whether the marriage they solemnized late last week in Santa Fe county will receive full state-wide recognition. Their case had been wending its way through the courts, although fast-tracked because Roper has brain cancer and is undergoing chemo — and they have three adopted children whose legal status they were hoping could be secured in case the worst happens. Originally, they were suing for the right to marry, but that has since become moot.

Jen Roper and Angelique Neuman, plaintifs challenging NM's de facto ban on same sex marriage (KOAT.com

Jen Roper and Angelique Neuman, plaintifs challenging NM’s de facto ban on same sex marriage (KOAT.com)

In a rather touching account, because Roper is too ill to travel at all right now, it was arranged for a judge to come to the cancer center where Roper is undergoing treatment, to perform the marriage.

Judge Malott also ruled as moot that if Jen Roper passes away, they will be listed as married on the death certificate, regardless of any other outcome. But he additionally indicated that the state of New Mexico as a whole is bound by its laws and state constitution to grant full recognition to their marriage.

GOP anti-gay opposition is mostly silent (so far)

Although the group of nearly 30 GOP New Mexico legislators have said they would try to stop the same sex marriage licenses from being issued, there’s been no word as to exactly when they’ll file their case.

Back in 2004, in response to San Francisco’s decision to allow same sex couples to marry, the Sandoval county clerk decided to start issuing licenses to same sex couples. (Disclosure: My wife and I were among the couples married in San Francisco in ’04. We were devastated by the licenses being declared null-and-void, so much so we decided not to try again in 2008 during California’s brief “Summer of Love.” We did marry in San Bernardino earlier this month..and now after Judge Malott’s ruling, we live in a marriage equality-supporting New Mexico county. Our heads are spinning.)

In response to the Sandoval county clerk’s decision back then, there was an almost panicked headlong rush to stop them immediately. The courts also immediately declared the few licenses that had been issued to be invalid right from the get-go.

Honestly, I was expecting that to be the same result when Doña Ana county unilaterally decided to start issuing licenses last week. This…is weird. Just speculating here, but my guess is the NM Republican legislators were waiting on the Roper and Neuman and Bernalillo county rulings.

But why didn’t they seek an immediate injunction from the NM Supreme Court to stop the county clerks? I have no clue.

However, if it’s any indication of intent, the leader of the gang of Republican anti-gay homophobes, State Senator Bill Sharer (R-Farmington) had this to say, “It is up 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. 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.”

Sadly, Senator Sharer has forgotten that it is totally up to the courts to interpret our laws, and to decide when our laws are unjust and the enforcement of them unconstitutional. By the way, Sharer is wrong in saying marriage law hasn’t changed in NM in over a century: It was changed radically in 1973, when a new law required all references to gender to be stripped from existing New Mexico laws and regulations, which affected matters ranging from property law all the way to heterosexual marriage. (A law cited repeatedly, by the way, by Judge Malott in his ruling. Along with section 18 of the New Mexico State Constitution: Equality of rights under law shall not be denied on account of the sex of any person.”)

NM State Supreme Court rules that businesses may not discriminate against gay couples

In a tangentially-related case last Thursday (8/22), the New Mexico State Supreme Court ruled that businesses may not discriminate against gay and lesbian couples, in a case against a wedding photography company. That company, Elane Photography, said they would not photograph a same sex commitment ceremony unless it did not in any way look like a marriage.

From a story in the Atlantic Wire, “The company argued that because they’d photograph a gay person, but not anything depicting or promoting the idea of a same sex weddings, the law didn’t apply.”

NM Supreme Court Justice Edward Chavez wasn’t having any of it:

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“If a restaurant offers a full menu to male customers, it may not refuse to serve entrees to women, even if it will serve them appetizers. The NMHRA does not permit businesses to offer a “limited menu” of goods or services to customers on the basis of a status that fits within one of the protected categories. … it does not help Elane Photography to argue that it would have turned away heterosexual polygamous weddings or heterosexual persons pretending to have a same-sex wedding. Those situations are not at issue here, and, if anything, these arguments support a finding that Elane Photography intended to discriminate against Willock based on her same-sex sexual orientation.”

Elane Photography’s refusal to photograph the wedding of Vanessa Willock and Misti Collinsworth was ruled a violation of the New Mexico Human Rights Act with respect to public accommodations.

What’s next?

That’s the question on everybody’s minds here. What happens next? The top three most populated counties in the state are now issuing licenses — 50% of all New Mexico residents live in Bernalillo, Doña Ana, or Santa Fe counties. What’s missing? Whether or not the state government will accept and recognize both these new in-state marriages, as well as out-of-state same sex marriages like the one my wife and I have from California.

If I had to guess, we’re talking a few more court cases. The part I find fascinating is how unlike in other states, when there’s been judicial intervention for enact marriage equality, it came from the top down — as in, from the State Supreme Court. Here, it’s the counties deciding to issue licenses, then the district courts ordering that two more counties follow suit immediately.

It’s going to be an interesting time, these next several weeks. More updates as they come…

(Update 5:50pm MDT: A few edits throughout the post to add some additional details and background info.)


Published professional writer and poet, Becca had a three decade career in technical writing and consulting before selling off most of her possessions in 2006 to go live at an ashram in India for 3 years. She loves literature (especially science fiction), technology and science, progressive politics, cool electronic gadgets, and perfecting Hatch green chile recipes. Fortunately for this last, Becca and her wife currently live in New Mexico. @BeccaMorn

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  • Nathanael

    Penna.’s now getting the lawsuits from the right-wingers which one might have expected in New Mexico. And there are all kinds of bizarre procedural issues going on there, because there, the statute actually prohibits same-sex marriage, so it’s a statute-vs.-constitution thing.

    I think in some ways the outcome in New Mexico has followed a very smart path. NM passed an ERA in 1972 and fixed its entire lawbook in 1973. Many other states which did the same thing, such as Hawaii, faced “backlash” sexist legislation in the 1990s which banned same-sex marriage. But NM managed to avoid that and ride out the backlash period without any effects on the lawbook. The result is that the gender-neutral lawbook is still in place today, when the opinions of the people have caught up. I feel that some credit must go to the politicians who prevented NM from passing “mini-DOMA” laws like so many states did.

  • Tyler Albertario

    I’m pulling my hair out over the lack of any news regarding other counties besides Bernalillo, Santa Fe and Dona Ana that may soon do the same.

  • http://www.rebeccamorn.com/mind BeccaM

    Yep. Sure is.

  • Indigo

    There’s something deeply right about New Mexico.
    In the good sense.

  • http://www.rebeccamorn.com/mind BeccaM

    Sweet. :-)

  • Thom Allen

    And the Mayor of Braddock, PA (Braddock, can you believe, a mill town?) is still performing same sex marriages. http://www.post-gazette.com/stories/local/neighborhoods-east/braddock-mayor-receives-more-requests-to-officiate-same-sex-marriages-699433/

  • Thom Allen

    Yeah, I think there are a lot of pols who are secretly waffling. They’d support SSM, but they don’t know how their voters would react. In a few places, small groups of legislators have announced in favor of same-sex marriage simultaneously or nearly so. That way, they may be diffusing any anger among their group. I’m wondering if the gay NFL players might not do something similar when they come out. Come out quickly, almost together so that no one gets targeted with too much heat.

  • http://www.rebeccamorn.com/mind BeccaM

    Good comparison there — I hadn’t thought much about my former home-state (PA), but you’re right. I would’ve thought they’d have tried to stop Montgomery county from issuing licenses by now, too.

    In a way, what we’re seeing is a kind of grassroots progressive (small-d) democratic revolt, coupled with a burning impatience with the usual status quo and the rock-grinding inertia of the justice system.

    I think a lot of what’s happened here at the state legislator level is there are plenty who have no problem with same sex marriage and gay rights in general. It’s just that they’re too cowardly to be on the record as affirmatively in support of such, hence the votes keep falling short. It wouldn’t surprise me if a lot of ‘em are breathing sighs of relief, that the counties and courts are running with the ball.

  • Freedonian

    Even in Jackson, Mississippi, a similar suit was filed in [IIRC] federal district court, it will be interesting to see how this all plays out, but I do honestly believe that marriage equality will be the law of the land within a decade or so.

  • Thom Allen

    Excellent both for marriage and anti-discrimination precedents! I’m really glad that both judges involved saw things the same way. I think that it will make the GOP’s position very difficult now.

    It sounds like New Mexico and Pennsylvania are both moving in the same direction, using some of the same moves. Bruce Hanes, county clerk of Montgomery County, has been issuing same-sex marriage licenses for a month or so now, even though PA state law doesn’t allow for gay marriage. The Montgomery County Solicitor’s Office filed a brief supporting his conclusions that not supporting same-sex marriage is discriminatory. The PA Department of Health, at the evil Gov. Corbett’s behest, has gone to court to stop Hanes and Montgomery County. Their case is that same-sex marriage would cause legal and administrative chaos. Odd, hasn’t seemed to cause chaos in the other states that have approved it. Corbett, the senile Neanderthal, had to take up the cudgel against gay marriage in his own hands since the PA Attorney General refused to do so since she believes that PA’s law on the subject is unconstitutional. Meanwhile, bills that call for the legalization of same-sex marriage are gaining more support in the PA House and Senate.

  • http://www.rebeccamorn.com/mind BeccaM

    By the by, apologies if there are any verb-tense inaccuracies above or something doesn’t seem quite right in the post. I had most of it drafted before the 3pm hearing, and then had to edit like mad to bring it up-to-date with Judge Malott’s blockbuster ruling.

  • http://www.rebeccamorn.com/mind BeccaM

    Yes, that’s absolutely correct.

    I just checked the census figures, and between Bernalillo, Doña Ana, and Santa Fe counties — NM’s three most heavily populated counties, in order — that’s almost exactly 50% of the total population (estimated around 2.09m for 2012, and yes, we’re a rather small state in that respect).

    Honestly, I didn’t think it was going to go this way, or this fast, and I actually believed for a very long time the NM Supremes wouldn’t uphold marriage equality. But at this point, I think the momentum is moving in that direction, and strongly.

  • Franklin7777

    What next? SSM is legal in all of New Mexico once this makes its way to the NM Supreme Court. The case about the wedding photographer was a smackdown on the photographer and declared that sexual orientation is protected class in New Mexico. I don’t see any way the SC overturns these decisions on Bernalillo and SF counties after that decision.

    Anyway, now that it’s legal in Santa Fe and Bernalillo counties, and the Dona Ana county clerk think it’s legal there too, that covers 50% of the entire state population for whom SSM is now legally viable.

  • Dave of the Jungle

    Congartulations!

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