ACLU files same-sex marriage challenge

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Lawsuit > Organization wants Supreme Court to decide the dispute

By The Staff

The American Civil Liberties Union of New Mexico filed a lawsuit Thursday aimed at forcing state officials to recognize same-sex marriage under current New Mexico law.

The legal action marked yet another effort by advocacy groups that was touched off earlier this week when Santa Fe officials tried to persuade county clerks to issue same-sex marriage licenses across the state.
The lawsuit was filed in state district court on behalf of two lesbian couples who sought marriage licenses in Bernalillo County.

It claims the current ban on same-sex marriage violates the New Mexico Constitution. The ACLU-NM said it wants to eventually get the New Mexico Supreme Court to decide the dispute.

“They filed this lawsuit today in the hopes that someday soon no committed, loving same-sex couple will be turned away and excluded from marriage because of the one they love,” said Peter Simonson, executive director of ACLU-NM.

The lawsuit was filed on behalf of Albuquerque couple Miriam Rand, 63, and Ona Porter, 66, and Santa Fe couple Rose Griego, 47, and Kim Kiel, 44.

The lawsuit came as local and state officials argue whether current New Mexico law allows county clerks to issue same-sex marriage licenses.

Santa Fe Mayor David Coss publically encouraged county clerks this week to issue such licenses and said current law allows it.

But clerks in Los Alamos, Curry, Doña Ana and Santa Fe counties said state law doesn’t let them issue same-sex marriage licenses and they won’t do so without an opinion from state Attorney General Gary King.

Phil Sisneros, a spokesman for King, said the attorney general has not seen the lawsuit and couldn’t comment.
State Rep. Bill McCamley, D-Las Cruces, has asked King to issue on opinion on the matter.

“We will be working as expeditiously as possible to formulate a response” to the request, Sisneros said.
King, meanwhile, issued an opinion in 2011 on whether same-sex marriages performed in other jurisdictions are valid in New Mexico.

His conclusion stated, “While we cannot predict how a New Mexico court would rule on this issue, after review of the law in this area, it is our opinion that a same-sex marriage that is valid under the laws of the country or state where it was consummated would likewise be found valid in New Mexico.”

The ACLU lawsuit, meanwhile, was the latest in the long fight for same-sex marriage in one of the most predominantly Catholic states in the nation.

In 2004, a Sandoval County clerk issued 64 licenses to same-sex couples but then-Attorney General Patricia Madrid soon declared the licenses were invalid. A court later ordered the clerk to not issue such licenses.

Porter said at a news conference Thursday that the lawsuit came just a few weeks after she and Rand celebrated their 25th anniversary as a couple.

“Without the legal ties of marriage, it would have been easy for either of us to cut and run,” Porter said. “We did not. Not because we are heroic or martyrs but because we are a family ... loving, committed and responsible.”

The Voices for Family Values also weighed in on the controversy, calling upon all county clerks in New Mexico to follow state law instead of the desires of Santa Fe Mayor David Coss with regard to marriage licenses.

The organization said that Coss and Santa Fe City Attorney Geno Zamara are falsely claiming that state law allows people of the same sex to marry each other even though the law hasn’t changed since a New Mexico court ruled otherwise in 2004.

“Civil servants should not think they are above the law,” said Gary Risley, Esq., of Voices for Family Values. “New Mexico law requires an application to get married in our state, and that application, by state law, calls for a ‘male’ and a ‘female’ applicant. Elected officials simply cannot make up the law as they go. New Mexico law is clear: marriage can only be between people of the opposite sex.”

Risley pointed out that no change to state law has taken place since 2004 when the attorney general and a state court ruled that public officials cannot bypass state law. He explained that neither individual public officials nor the courts have the right to unilaterally change the state’s marriage laws.

“One city’s mayor cannot change state law on his own, regardless of the issue involved,” Risley said. “This issue was decided in 2004. The attorney general said that New Mexico law only allows marriage for a man and a woman.

The New Mexico courts agreed. Santa Fe’s mayor is not above the law or the democratic process that gives us our laws.”