New Mexico gay marriage legal since…2004?

Many AMERICAblog regulars probably remember the famous time when, for one month in early 2004, gay and lesbian couples were getting married in San Francisco, California.

Then-Mayor (now Lieutenant Governor) Gavin Newsom made the decision that California’s equal protection clause gave him the authority to order city clerks to begin issuing marriage licenses to same sex couples.

This was made possible in part because the City of San Francisco and the County are one and the same. Gay marriage was a reality in California… for a short while.

The California Supreme Court was brought in, and they stopped everything and annulled all the marriages, including the one that resulted in the certificate my wife and I still hang on our wall. (And occasionally remember to dust…)

Gay marriage via Shutterstock

Gay marriage via Shutterstock

Other locales joined San Francisco’s act of civil disobedience

What most folks don’t know is something very interesting happened around the country at the same time, sparked by the events in San Francisco. City and county officials in a number of places began issuing licenses as well, including in New Paltz NY, Multnomah County OR, Asbury Park NJ…and Sandoval County, New Mexico.

Sandoval County NM official logo

Sandoval County NM official logo

On February 20, 2004, Sandoval County Clerk Victoria Dunlap (Republican, believe it or not) announced she’d begin issuing licenses to same sex couples. Her decision, she said, was based on her interpretation of New Mexico’s equal protection laws, just as Newsom had done.

By the end of the day, 66 licenses had been issued. That night, an emergency injunction was granted, barring Dunlap from issuing any more. (Sad side note: Dunlap was essentially drummed out of politics altogether by the state GOP for her actions.) Later, the courts would also slap on a formal restraining order against Dunlap, after she threatened to start issuing licenses again.

On February 23rd, the Sandoval County Commissioners met and voted to allow the gay and lesbian couples who had received licenses to file them, subject to the usual 30-day limit from the day of issue. By March 23rd, of the 66 licenses issued, 64 were returned and registered. However, New Mexico’s State Attorney General at the time, Patricia Madrid, issued a statement saying in her opinion those marriages were invalid.

Key detail to remember: The Attorney General’s office is not a court of law. They are merely the states’ chief lawyers. Their opinions are important and significant, but not legally binding. Oh, and one more — that restraining order expired at the end of Dunlap’s term of office, January 1, 2005.

Fast forward to the summer of 2010

In 2010, a peculiar divorce case came before NM District Judge Sarah Singleton. One of the “Sandoval 64″ couples wanted an official legal dissolution of their marriage. If that name sounds familiar, it should: Judge Singleton is the same state district judge who last week ordered Santa Fe county to begin issuing same sex marriage licenses.

On August 9th of that year, Singleton ruled that the couple’s marriage was indeed valid and eligible for divorce proceedings. She did not, however, rule on the larger issue of marriage equality in the state as a whole. (Until just last week, when everything changed…)

The “Sandoval 64″ marriages from 2004 are still valid

In a development late on Wednesday, 28 Aug 2013, New Mexico’s current Attorney General Gary King said he’d been informed Sandoval county had marked, in their records, that those 2004 marriages were invalid. He issued a formal statement:

“It has come to the attention of this office that you have discovered the word ‘void’ or ‘illegal’ affixed to marriage licenses issued to same sex couples by the former Sandoval County clerk in 2004. Under New Mexico law … it is clear only courts of New Mexico are invested with the authority to void marriage licenses.”

He further added that absent a court directive, while county clerks have the authority to issue licenses, they do not have the right to void one that was duly issued and properly registered. Even if it was a same sex marriage.

While this may seem confusing — “Isn’t King doing the same as Madrid did, only in the other direction?” — it’s actually not.

What King is saying is that no NM state attorney general can make a legal determination as to the validity of a properly registered marriage, only the courts can do that. Moreover, the presumption as to validity falls in favor of the couple getting married. Once you turn in that license and the clerk stamps it as accepted and registered, that’s it — you’re married. And it can’t be voided without a court decision saying so.

Which never happened in New Mexico.

The legal reasoning here is similar to that from the California Supreme Court in the aftermath of Prop 8, where they ruled in favor of upholding validity of the roughly 18,000 same sex marriages performed during that state’s proverbial “Summer of Love.”

And wouldn’t you know, there’s that ruling from just two years ago, in which a NM state district judge did rule that the marriages were legal, valid, and binding under the law. A ruling that was never challenged.

I don’t know what the numbers are today, but there are clearly still at least several dozen same sex couples in New Mexico who, despite the state’s refusal to recognize those marriages for nearly ten years now, have been legally married all along.

In addition, putting all these details in context and order, the conclusion is unavoidable: All these gay and lesbian couples getting married in New Mexico right now? They are legally married, and will continue to be considered such by law (including even the Feds), even if the licenses are stopped, unless the courts say otherwise.

What remains is litigation to force the New Mexico State government to fully recognize those marriages and be compelled to extend the rights, privileges, and legal obligations owed them. And that, my friends, is almost certain to be a New Mexico Supreme Court-level decision.

Sandoval had been sitting this one out…so far

In Thursday’s developments, a lesbian couple — Carolyn VanHousen and Gail Gering — attempted to get a marriage license from Sandoval county, and were “resolutely” refused.

Sandoval County Clerk Eileen Garbagni says she won’t issue the certificates until a judge gives her the go-ahead.

The ACLU has said they will help file that lawsuit right away. (Update: Los Alamos county is on the list now, too.)


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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  • pappyvet

    Off for a while with some health issues,come back and Becca has a story. Wonderful !Cant wait for more and to get caught up

  • dcinsider

    Winning is fun!

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

    Thank you, you’re very kind

  • AHoltzer38

    Top notch reporting and insights Becca. Much appreciated.

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

    Thanks, dear.

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

    Yeah, I’m split on whether what the NM Supes are doing is really dumb (leaving all the uncertainty out there) or smart (allowing enough time for there to be lots of NM same sex marriages that would be disenfranchised illegally/unconstitutionally should the state attempt to impose a ban).

    Being a New Mexico resident, my wife and have the proverbial ‘skin in the game’, but we’re really glad right now that we have a California marriage instead. One less thing to be uncertain about.

  • Rob Dowdy

    That is because most of them have a fundamental cognitive deficiency: they see everything as faith-based and they live in a world of magic where inconsistency is hand-waved into inconsequence because “God works in mysterious ways” and “God works as He will and ours is not to question.”

    They literally don’t seem to understand that you can’t discount the scientific methodology that informs, say, evolutionary theory or findings on the nature and cause of global warming, while at the same time enjoying the myriad accomplishments of that very same methodology in the medicines you take, the TV you watch, the car you drive, the tiny phone in your pocket that connects you to the collected knowledge of the human race, etc.

    In their world it is completely acceptable and unremarkable for them to hurl rhetorical thunderbolts about the wickedness of “embracing the unnatural” while shoving life-saving, synthetic antibiotics into their hateful, ungrateful mouths.

    It blows my mind not only the ease with which they pick and choose which parts of their holy book to believe (and then distort even those parts, which were badly translated to begin with), but the ease with which they believe they can do the same thing to what they perceive as “science.”

    You’ll see this when they smile their smug little smiles and spit the word “theory” like an epithet, as if it merely means “hypothesis,” proving that they have no idea at all what they’re talking about.

  • Rob Dowdy

    Imagine all the Republicans who would use all the crazy legal confusion to go from repudiating the marriage in question to touting gays as nothing but a bunch of lawless bigamists who embarked on a campaign bent on the total destruction of the institution of marriage the instant they were given the right to marry.

  • Stev84

    It could be very, very awkward if one them got married to someone else believing that they were unmarried. Even if they are just living with someone else, a divorce can an expensive or at least inconvenient.

  • Rob Dowdy

    See, a madhouse!

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

    Indeed. If that second couple simply ‘broke up’ and didn’t do anything about their filed marriage paperwork…well, I’m guessing a visit to an attorney is needed now.

  • tompinto

    Very interesting post – thanks. I know a couple of the 2004 couples . . . one is vaguely amused that they were legally married so early and the other . . . well, they broke up long ago – which raises interesting legal questions.

  • Thom Allen

    Good. I’m looking forward to it.

  • Thom Allen

    “. . . racial mixing was scientifically unsound.” Amazing how racists/bigots/haters try to use science only when it suits their needs. When it doesn’t they ignore o deny it and then invent their own, compatibly contemptible “research” that works for them. I wonder how many “scientists” were part of Virginia’s legislature at the time. And how much research the members did on that question. And how many may have had dalliances with black women.

  • Rob Dowdy

    My paternal great-grandparents were married when she was barely 13 years old and he was only a few months older. They were together until her death close to 70 years later. He declined pretty quickly after she went, lingered on for a couple of years, and then joined her.

    He was always a loud, boisterous man with a laugh that would rattle the windows, but a few weeks after she died I watched him through their bedroom door for a little while as he sat on her side of the bed, his shoulders slumped, running his fingers across her pillow with more reverence and gentleness than I’d ever seen him show anything. He was never the same man again.

    I guess I don’t see their point.

  • Rob Dowdy

    It is heartening to see how quickly these guys have gone from being seen as strident and mean but mostly right, to being shown the exit to the world stage. It must be awful to have to watch the world move on without you, to be so right and righteous and have lost. So now they are reduced to muttering vague imprecations about the fate of our “fallen” nation.

    Consider the company they keep, all of whom were quite sure they were watching Rome burst into flames right before their eyes:

    State v. Jackson. Missouri (1883): “They cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites.”

    Scott v. Georgia (1869): “The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate [...]They are productive of evil, and evil only, without any corresponding good.”

    Virginia’s Racial Integrity Act of 1924: The law’s stated purpose was to prevent “abominable mixture and spurious issue.” It “forbade miscegenation on the grounds that racial mixing was scientifically unsound and would ‘pollute’ America with mixed-blood offspring.”

    Senator James R. Doolittle (D-WI), 1863: “By the laws of Massachusetts intermarriages between these races are forbidden as criminal. Why forbidden? Simply because natural instinct revolts at it as wrong.”

    And who can forget Loving v Virginia, where the judge was compelled to opine from the bench:

    “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races show that he did not intend for the races to mix.”

    http://en.wikipedia.org/wiki/Loving_v._Virginia
    http://www.mediaite.com/online/bet-you-cant-tell-the-difference-between-these-actual-anti-interracial-and-anti-gay-marriage-quotes/

    The sky is always falling. Ultimate destruction and the fires of hell are always licking at our heels. We are always > < this close to finally enraging god or the universe so greatly with our depravity that we must be summarily wiped out of existence as if we never were.

    And yet here we are.

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

    Must be. Unfortunately for them (and good for us), they can’t come up with anything approaching a rational legal argument against marriage equality.

    It’s always some variant on, “Gay people are icky and must suffer.”

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

    Well, here in the U.S., the Federal gov’t says it’ll recognize a same sex marriage performed anywhere, as long as it’s legal in that jurisdiction. So all those U.S. couples who married in Canada, for instance, are good to go.

  • basenjilover

    I’m optimistic as well that NM State Supreme Court will continue to rule in favor of same sex marriages. In other news, lawyers for state of Pennsylvania likened same sex marriage to partnership between 12 year olds. Did warped thinking lawyers graduated from Liberty University, I wonder?

  • Rob Dowdy

    I’ve been wondering whether this would also apply to marriages performed outside the US, but I can’t find anything definitive one way or another. My partner and I live in Australia, and while same-sex benefits and recognition here are really quite good, gay marriage itself is not legal. But we’ve been planning to visit New Zealand, where it is.

    Australian tax time is on now and for all intents and purposes having the two of us treated as a single financial entity was as trivial as checking a box on a form. It was really quite a refreshing change.

    All notions of equality and fairness aside, this whole gay marriage revolution going on in the United States right now must be driving a small army of career bureaucrats to the bottle. You know, the ones who thrive on routine and the comforting sameness of each day, now having to deal with all this logistical chaos.

    Who’s married? Who’s not? Who gets what benefits? Who knows! It’s a madhouse, a maaaaaadhouse!

    On a side note, and somewhat off topic, we’ve been pleasantly surprised at how unremarkable it is to be gay here in Brisbane. It is not uncommon to see gay couples holding hands or lying in the sun together at the Botanic Garden.

    As an added bonus, everyone refers to their spouses as “my partner” so even that bit of linguistic awkwardness is gone. Of course, it leaves you with no idea who’s gay or straight, which when you think about it is just about the perfect way for it to be.

  • 2patricius2

    Thanks for the information. That is good news.

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

    I’ve been working on a post that may explain, at least in part, why the GOP anti-gay response has been in such disarray.

    I still think there will be a legal challenge of some kind, but with 5 rather progressive Dems comprising the NM State Supreme Court — who have already ruled favorably on LGBT rights — I’m quite optimistic at this point.

  • Thom Allen

    Amazing that King made this statement. I’d have expected him to have delayed somehow, saying that an investigation was needed or made some other excuse to hold things up. Maybe he sees the handwriting on the wall. The Repubs in general in NM seem to be making some noise but not doing much to stop this. I would have expected something more than verbiage from them by now.

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

    Here’s a bit of breaking news:

    All married, same-sex couples in the U.S. will receive federal tax benefits previously given to just heterosexual couples, the Obama administration said on Thursday.

    The ruling applies even to gay couples that live in states where their union is not recognized — so long as they were married in a state that allows same-sex marriage.

    I’m guessing John will have more to say on this later…

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

    I noticed that. Personally — this is pure conjecture — but my guess is this happened right after Dunlap left office, because she wouldn’t have done it.

  • Steve_in_RI

    Indeed, Becca, well done!

  • Bose

    Good stuff… though, it’s never explained when the licenses were marked “void” or by whom.

    Fun now to see Tony Perkins’ response to Sandoval County in 2004 (SFGate): “We cannot permit a few states and cities to force same-sex ‘marriage’ on the rest of America.” What a difference a (near-)decade makes!

  • http://adgitadiaries.com/ karmanot

    Well done Becca!

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