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Arizona & New Mexico: The Latest Marriage Equality Battlegrounds

by David  Perry
EDGE Media Network Contributor
Tuesday Oct 22, 2013

On October 23, the Supreme Court of the State of New Mexico, per a request of the state's 33 counties, is set to determine whether New Mexico will be the latest in the nation to recognize and allow same-gender marriages. In neighboring Arizona, several local-level polities are defying state law and issuing same-sex marriage licenses on their own, making the American Southwest the newest front as gays and lesbians battle for full equality under the law.

"I'm hoping what this will eventually lead to is a multitude of cities passing a civil union ordinance, which has to create pressure on a state legislature to consider changing the state law," says Rob Adams, Mayor of Sedona and one of the legislators whose issuance of same-sex licenses puts him on the vanguard of the fight.

Death By A Thousand Cuts

As of this writing, 14 states, the District of Columbia, and six Native American tribes issue same-sex marriage licenses within their jurisdictions, while seven other states created civil union partnerships. The evolution towards gay marriage equality in New Mexico and Arizona, however, differ from other states in that both are experiencing a from-the-ground-up movement among their various municipalities. Whereas New York, Minnesota, Iowa and, most recently, New Jersey, passed LGBTQ marriage legislation from the their respective capitals, both New Mexico and Arizona are a growing patchwork of counties and cities taking the matter into their own hands.

In April of this year, a Rocky Mountain Poll found a solid majority of Arizonans (55 percent) support marriage equality. This summer, along with Sedona, the cities of Tucson, Bisbee, and Jerome began issuing same-sex marriage licenses in defiance of that state’s constitutional definition of marriage, as well as the anti-gay marriage views of Gov. Janice K. Brewer. The legal standing of LGBTQ unions in Sedona and other state polities is uncertain, since the state constitution holds precedence over local laws. It is clear, however, that the forward-thinking legislators are setting the foundations for a showdown in the state Supreme Court in Phoenix.

"The first sentence in the ordinance really says it all," Adams tells EDGE of the legislation he passed allowing same-sex marriage. "’The Mayor and the Council of Sedona support the right of every person to enter into a lasting and meaningful relationship with a partner of his or her choice regardless of the gender or sexual orientation of the parties.’ I mean, that says everything I need to say."

Across the border, New Mexico presents a more interesting case, as it is the only state in the Union that has yet to declare a constitutional definition of what marriage is. While a statute is in place functioning as a same-sex union ban, the New Mexico state constitution, and thus state law, neither recognizes nor disallows same-sex unions of any kind, leaving the matter the discretion of state and local officials.

Lynn Ellins, the formidable County Clerk of Doña Ana County and attorney, began issuing same-sex marriage licenses in August, and points out seven other counties have since followed, and, in a hopeful sign, State Attorney General Gary King signaled he would not challenge the move. While several lawsuits to overturn the statute were working their way through the New Mexican courts, Ellins explains they "were going nowhere."

"I could see that this was a case that was going to drag on two or three years," he says, "because that’s what it takes to get a matter up to the Supreme Court."

The statute banning gay marriage carries with it an astounding load of legal irony. As Ellins is quick to highlight, in addition to carrying an equal protection clause (similar to that in the national Constitution), within the New Mexico state constitution is a provision from 1972 guaranteeing that gays and lesbians specifically are afforded equal protection under state law. The wording allows for same-sex marriage, but its inclusion makes the passage of such legislation far easier than elsewhere, and in fact makes a strong argument that the statute itself unconstitutional. Indeed, it stands today only because it was never at any point challenged in court - although it got close.

"In 2004, a Republican county clerk in Sandoval County began to issue to same-gendered couples," Ellins tells EDGE in what is jurisprudence at its most elegant. "The state Attorney General intervened, saying she had to stop because the statute does not permit the issuance of these licenses, and applied to the district court for an injunction.

"The clerk subsequently stopped issuing the licenses and so the matter that was filed with the attorney general in the district court was dismissed. There was never any judicial action taken on it, no constitutional analysis. The argument was never made," Ellins said.

In other words, because the clerk voluntarily stopped issuing licenses, the case never made it to a judge for a ruling, thus, the statute remains in place, regardless of the state constitution, and it is the constitution, not the statute, under which Ellins is operating.

The Wednesday court hearing in Santa Fe is widely seen by Ellins and others as final clarification on the matter.

Southwest Equals "South?"

While outside the traditional Bible Belt, the American Southwest, usually considered the "Four Corner" states of Arizona, New Mexico, Colorado, and Utah, comes in various shades of red and blue.

Ellins began his life in politics in the 1980s as a liberal Republican in Colorado but switched parties when it was clear the Religious Right was subsuming the GOP. He was then introduced to the concept of LGBTQ equality almost right away.

"When I lived in Colorado, I was a member of the University of Colorado Board of Regents," he recalls, "and in 1985 I was approached by groups representing the faculty, staff and students who asked that I introduce a resolution to the board to include sexual orientation as one of the protected classes under the university’s regulations concerning equal rights.

"I thought that they made a good case for the introduction of the resolution, so I went ahead. I lost, which didn’t surprise me," he said. "But at that point, I became interested in the issue of getting myself personally involved."

"I would certainly describe the state as being conservative," Adams says of Arizona. "I would describe Sedona, and other cities, as being more progressive."

However conservative Arizona may be, Adams notes there has been nothing in the way of an organized protest against him or his ordinance, and that on Governor Brewer’s very doorstep is Mayor Greg Stanton of Phoenix -- a gay ally and staunch supporter of Adams and the other cities’ pro-LGBTQ stance.

"Some people make the case that somehow this is against God’s will, and I really don’t know how to argue that," Adams admits, but adds, "It’s not my intention to argue it. I just believe the ordinance is the right thing to do."

David Perry is a freelance travel and news journalist. In addition to EDGE, his work has appeared on ChinaTopix, Thrillist, and in Next Magazine and Steele Luxury Travel among others. Follow him on Twitter at @GhastEald.


  • Tim Janes, 2013-10-24 17:23:13

    Tucson was one of the first cities in the country to pass an ordinance for Lesbian/Gay equality in 1976. (Transgender rights were added later.)

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