Lawyers See Recent Gay Marriages As Legally Solid

Thursday Aug 29, 2013

As hundreds of gay and lesbian couples flock to courthouses around New Mexico to get married, advocates are hopeful the state's highest court will soon step in to resolve lingering legal questions and provide a uniform statewide policy on gay marriage.

For now, six of the state's 33 counties are issuing marriage licenses to same-sex couples and a number of other clerks say they're waiting for a court order before they take similar steps.

What remains uncertain is when a legal challenge over same-sex marriage reaches the five-member Supreme Court.

In the meantime, recently married couples aren't caught in legal limbo, according to Antoinette Sedillo Lopez, a professor of family law at the University of New Mexico.

She said Wednesday the marriages are legally sound, even if the state Supreme Court were to override recent district judge's rulings that ordered clerks to issue licenses.

"In New Mexico, the legal policy is marriages are presumed valid until a court declares them invalid (on an individual basis)," said Sedillo Lopez.

That didn't happen in 2004 when the Sandoval County clerk issued more than 60 marriage licenses to same-sex couples before stopping when then Attorney General Patricia Madrid objected. Six years later, a state district judge in Santa Fe ruled that a marriage license issued in Sandoval County to two women was valid and subject to divorce.

"Folks who have received marriage licenses from county clerks and

have gotten married with those licenses are just as married as anyone else," said Egolf, a lawyer who represented two Santa Fe men in a lawsuit that led to a court order directing county officials to issue them a marriage license.

Egolf said it's highly unlikely a court would invalidate the recent marriages that have occurred in the past week since the Dona Ana County clerk, without a court order, started issuing licenses to same-sex couples. The practice soon spread. A judge directed the Santa Fe County clerk a few days later to grant licenses and this week a district court judge in Albuquerque declared that it's unconstitutional to deny a marriage license to gay and lesbian couples.

Questions over the legality of gay marriage issue have been simmering in New Mexico for years because state law doesn't explicitly authorize or prohibit it. County clerks in the past have denied marriage licenses to same-sex couples in part because there is a marriage license application form in state statutes that contains sections for male and female applicants.

Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, said it's important to resolve the legal questions to ensure that gay and lesbian couples receive benefits they're entitled to as married couples, such as Social Security survivor benefits and the ability to joint married tax returns.

"Until we know for sure that the federal government will recognize marriages in the state of New Mexico, whether or not couples here qualify for joint filing remains uncertain," Simonson said. "It's our contention that the federal government should recognize marriages now throughout the state regardless of what county someone gets married in."

The path for moving the same-sex marriage legal fight to the Supreme Court remains unclear. No county clerk intends to appeal the recent orders that directed them to issue licenses.

A group of Republican legislators plans to file a lawsuit to stop clerks from issuing licenses to gay and lesbian couples, but their lawyer hasn't decided where and when the case will be filed.

The Supreme Court could step in if it grants a pending request by Egolf to consolidate all lawsuits over the issue and have the justices assume control of them. That's what happened in 2011 with competing lawsuits over political redistricting. The high court appointed a retired judge to make a decision and that was later reviewed by the justices.

Egolf wants the Supreme Court to do something similar with gay marriage, providing a way for potentially quick statewide ruling resolving the question. He hopes the high court could make a final ruling on gay marriage by the end of year.

How the Supreme Court would rule on the gay marriage issue is uncertain. But the justices unanimously decided last week that a commercial photography business owned by opponents of same-sex marriage violated an anti-discrimination law by refusing to take pictures of a gay couple's commitment ceremony. If the Supreme Court doesn't soon resolve the gay marriage question, the issue almost certainly will surface in January when the Legislature meets for a 30-day session.

Republican Gov. Susana Martinez contends that voters should decide the issue through a possible constitutional amendment.

Enrique Knell, a spokesman for Martinez, said the governor "does think our current situation shows why it's best for the voters to decide this issue - not a court, not politicians in Santa Fe, and not a patchwork of random county clerks. It would be best for voters to settle this issue."

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