First same-sex license issued in Los Alamos

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Courts > Judge hands down ruling to cheers and applause

By Arin McKenna

Janet Newton and Maria Thibodeau celebrated their victory in district court Wednesday morning when District Judge Sheri Raphaelson upheld her decision ordering Los Alamos County Clerk Sharon Stover to issue same-sex marriage licenses —by driving straight to the county clerk’s office to apply.


The courtroom erupted in cheers and applause when the ruling came down.

Newton and Thibodeaux filed a complaint after Stover refused to issue the couple a marriage license last week.
Attorneys Brian Egolf and John Day of Egolf + Ferlic + Day represented the couple. The firm is currently representing gay clients in Santa Fe and also assisted in litigation in Taos County that led in a similar ruling.

County Attorney Rebecca Ehler, representing Stover, requested an order staying the Alternative Writ of Mandamus Raphaelson issued last week until the New Mexico Supreme Court issues a ruling on pending same-sex marriage cases.

“We think the citizens of the state deserve a comprehensive approach to this issue and would ask the court to stay this matter pending a definitive opinion from the higher appellate court,” Ehler argued.

Egolf countered that his firm had attempted to bring the issue before the Supreme Court twice in the past two weeks and had been denied.

“We think staying this case on an imminent decision by the Supreme Court is speculative at best,” Egolf said. “To ask our clients to wait on the speculation that the Supreme Court may act is not supported by law, it’s just not fair.”

Raphaelson denied the county’s motion, stating, “If there was a case pending in the appellate courts that would control the outcome of this case, then I would consider this stay. But without that, the motion for a stay is not well-taken and is denied.”

Ehler then argued that this case did not meet two basic requirements for a Writ of Mandamus: that there must be a clear duty for the person to perform the task and that the applicants must have a plain and speedy remedy of law for the relief that they are asking.

Ehler argued that the Chapter 40, the statute governing marriage, is unclear.

The statute states that “To obtain a marriage license, the couple shall personally appear at the office of the county clerk issuing the license and provide sufficient identification to satisfy the county clerk as to each person’s identity and qualification to receive a marriage license pursuant to Chapter 40, Article 1 NMSA 1978.”

Although that section of the statute has no gender identification, other parts do designate gender, including the application (which specifies “male applicant” and “female applicant”) and the certificate of marriage (which identifies “bride” and “groom”).

Chapter 40, Article 2, which delineates the rights of a married person, also refers to “husband and wife” several times.

“The legislation requires those seeking a marriage license to certify that they’re either a male applicant or a female applicant,” Ehler argued. “Requiring a clerk to accept an application that contradicts what’s obviously in front of them, such as the applicant’s gender, as well as the documents provided for identification to get the license, requires the clerk to flout the law, it fosters disrespect for government and forces the applicants into the untenable position of representing themselves as something they’re not.”

Ehler also argued that precedence set in a 2010 case, Rivera vs. Rivera, allows for a “plain and speedy remedy” by recognizing that a religious ceremony plus a contract equals a marriage, therefore a license is not required.

Egolf argued that not only the statute but also the New Mexico Constitution required Stover to issue the license. He stated that the parts of the statute that specify gender are trumped by the Constitution, which reads “Equality of rights under law shall not be denied on account of the sex of any person. (As amended November 7, 1972, effective July 1, 1973).”

“We’re asking the state to enforce the constitution and recognize that this is what the constitution requires. When the state adopted the amendment, it was a clear message that sex equality is to be the law of the land going forward, and this is the mechanism by which we’re trying to make that expression a reality in yet another area of life,” Egolf said.

Egolf also noted that the only prohibitions to marriage in Chapter 40 relate to incestuous marriages, whether the applicants have reached the age of majority and whether they have the legal capacity to enter into a contract.

As to the wording on the application form, Egolf noted that the article states that application forms must “substantially” comply with the sample presented.

“It does not have to be exact…40-1-18 also has a place where you’re supposed to supply the date on which a physician examined you for your fitness to be married. That obviously does not appear any longer on the application,” Egolf said.

Raphaelson limited her decision to the language of the statute.

“When I look at 40-1-10, the statute that requires the clerk to issue the licenses, the language in there just says ‘each couple,’” Raphaelson said. “There is nothing of a gender distinction in that language, and certainly the legislature has had the opportunity to put in there a gender distinction if they wanted to.

“If any couple asks for a marriage license and they meet the other requirements: the age requirement, the blood relationship requirement, and then the clerk does not have any discretion, by my reading of 40-1-10, in choosing whether to issue or not issue a license. It is required. It uses the word ‘shall,’ and that’s mandatory.

“The argument that the county has made is that I should interpret the words ‘each couple’ in 40-1-10 to mean only a man and a woman and that I should look to the forms that correlate to this statute, and have the forms then control the actual substantive statute. And the law says the statute trumps the form,” Raphaelson said.

“It is the form that we need to theoretically possibly change to comply with the law, not the law that needs to be changed to comply with the form.”

Raphaelson also noted that, according to the statute, failure to issue a license if the requirements are met constitutes a criminal offense and also authorizes the clerk’s removal from office.

Raphaelson then stated that there was no more “plain and speedy remedy” than allowing the litigants to obtain a marriage license in Los Alamos County.

Before the end of the day, the county clerk’s office had issued its second same-sex license, to Kristi Laree Carr and Kay S. Swadener.