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In Santa Fe, at least, city leaders are taking the advice of their city attorney and they are encouraging county clerks in New Mexico to issue marriage licenses to same-sex couples.
Mayor David Coss and City Councilor Patti Bushee announced they are sponsoring a resolution expressing support for gay marriage in New Mexico.
The resolution will be introduced at the next city council meeting, scheduled for March 27.
“Santa Fe is a city of respect, acceptance, and diversity that embraces all of our residents,” Coss said in a press release. “I sponsored this resolution because all loving, committed couples should have the right to marry regardless of their sexual orientation.”
“It is disheartening to me — to be creating laws for my community for 19 years and not be treated equally in the eyes of New Mexico law,” Bushee said. “We are the last group allowed to be legally discriminated against. This is a civil rights issue — it’s time for Santa Fe to lead the way.”
“Marriage law in New Mexico is gender-neutral and does not define marriage as between a man and a woman,” said Geno Zamora, city attorney for Santa Fe. “New Mexico already recognizes valid marriages performed in other states between same-sex couples; it would violate our state’s constitution to deny equal rights in our own families.”
Where does Los Alamos fit in all of this?
County Clerk Sharon Stover said no same-sex partners have applied for a license in Los Alamos and she would not issue one because it is a violation of state law.
Stover cited NM statute 40-1-8 where the application, license and certificate have to be between a male and a female applicant. N.M. 40-1-1, meanwhile, states that marriage is a civil contract requiring consent of parties.
“I have not seen Mayor Coss’ email yet,” Stover said. “For what he is asking it is a violation of state law. I have (former Attorney General) Patricia Madrid’s opinion. She said it is a violation of state law.”
Madrid’s opinion states, “New Mexico statutes, as they currently exist, contemplate that marriage will be between a man and a woman. The New Mexico legislature has adopted a marriage application form that requires a male applicant and a female applicant. The rights of married persons are set forth as applicable to a husband and wife. …
The generally accepted definition of ‘Husband’ is a married man. Black’s Law Dictionary, Sixth Edition. ‘Wife’ is defined as a woman united to a man by marriage. Thus it appears that the present policy of New Mexico is to limit marriage to a man and a woman.”
In a written opinion, dated March 19, Zamora begged to differ.
Zamora discusses the fact that New Mexico’s statutory definition of marriage is gender-neutral and does not define marriage as between a man and a woman. “Nor does New Mexico law prohibit same-sex marriage. Therefore, same-sex couples are capable of contracting within the law and capable of marrying in the State of New Mexico,” he wrote.
Zamora’s memo references nine states and the District of Columbia, which all issue marriage licenses to same-sex couples: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington and the District of Columbia. Another group of states constitutionally or statutorily defines marriage as between a man and a woman. New Mexico law does not speak directly to same-sex marriage.
Santa Fe County Clerk Geraldine Salazar told the Associated Press she would love to issue licenses to same-sex couples, but “under the current law I am not free and clear to do so. And I am not going to play politics for a few hours.”
Salazar said she must follow the rules and laws of the courts and the Legislature, not an opinion from a city attorney.
Phil Sisneros, a spokesman for New Mexico Attorney General Gary King, said his office has not weighed in on the specific question of whether same sex-marriage is legal, and “to my knowledge, there has not been a formal request for an AG’s opinion.”