N.M. Supreme Court: Same sex marriage legal -- updated

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By Arin McKenna

In a unanimous 5–0 decision handed down Tuesday, the New Mexico Supreme Court ruled that that denying same-sex couples the legal rights, protections and responsibilities of marriage is unconstitutional. The ruling makes New Mexico the 17th state to legalize same-gender marriages.

The Court found that prohibiting individuals from marrying solely because of sexual orientation is a violation of the Equal Protection Clause in the New Mexico Constitution.

Justice Edward L. Chavez, who wrote the opinion for the court, began by quoting Article II of the New Mexico Constitution, which reads, "All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness."

"We think New Mexico is a little freer today than it was yesterday," said Brian Egolf of Egolf + Ferlic + Day, one of the lawyers who represented Janet Newton and Maria Thibodeau in in their suit against Los Alamos County for refusing to issue them a marriage license. Newton and Thibodeau could not be reached for comment.

The ruling means that couples such as Newton and Thibodeau, who married after winning their suits in lower courts, can breathe a little easier, knowing that New Mexico's highest court has validated their marriages.

"This decision was a very clear and strong statement by a unanimous court that the right to marry is a constitutional right," Egolf said. "It is very important that they defined it as a constitutional issue. To deny a couple that fundamental rights is on the same footing as denying any other right, such as freedom of speech or the right to vote."

"This is a welcome landmark decision for the people of New Mexico," said Egolf's partner, John Day, who also argued the case. "There will be a lot of happy families this holiday season because they ate now afforded all the rights they deserve."

The court chose not to strike down the state's current marriage laws but instead provide a definition of "civil marriage" as "the voluntary union of two persons to the exclusion of all others."

In its remedy, the court also made certain that nothing in current New Mexico law could be construed to restrict the rights and privileges of same-gender couples. The ruling reads:

"In addition, all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples. Therefore, whether they are contained in NMSA 1978, Chapter 40 or any other New Mexico statutes, rules, regulations or the common law, whenever reference is made to marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower or any other word, which, in context, denotes a marital relationship, the same shall apply to same-gender couples who choose to marry."

The court found no validity in the argument put forth by plaintiffs that the overriding purpose of New Mexico's marriage laws is “responsible procreation and childrearing.”

Chavez wrote, "Our review of the marriage statutes dating back to 1862 has not revealed any language, either implicit or explicit, that requires applicants for a marriage license to attest to their ability or intention to conceive children through sexual relationships…Fertility has never been a condition of marriage, nor has infertility ever been a specific ground for divorce."

The opinion noted that opposite-sex couples are afforded all protections under the law whether or not they intend to have children or are incapable of having children. The opinion reads:

"The purpose of the New Mexico marriage laws is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property and their children, if they choose to have children."

Assuring that all families have equal protection under the law was at the heart of the ruling.

"The burdens on same-gender couples who want to marry and who are deprived of federal and state benefits and protections, compared to opposite-gender couples who want to marry and are therefore eligible for federal and state benefits and protections, is readily apparent and, if same-gender marriages are not legally permitted, inequitable."

The court cited many examples of protections that have, until now, been denied to same-sex couples. Those include laws governing joint property, inheritance, the right to make health-care and end-of-life decisions for an incapacitated spouse and issues such divorce and child custody.

The court also addressed legislation regarding marriage license applications, marriage licenses and certificates, which assigns gender-specific titles to the applicants. The remedy orders all clerks to utilize gender-neutral language on all forms pertaining to marriage. Los Alamos County Clerk Sharon Stover was relieved that the court addressed that issue.

"One of the reasons we went to court was because state law dictated the wording on the licenses, and as clerks we can only carry out the law. We don't have the authority to change it," Stover said. "I think our County Attorney, Rebecca Ehler, made that point very well at the district court hearing, but Judge (Sheri) Raphaelson chose not to address that.

"I'm very pleased that the Supreme Court recognized the position this put us in and addressed that issue, since that was really at the heart of the matter for the clerks. All 33 clerks were speaking with one voice on this, and the court addressed what our issue was."

Stover noted that Los Alamos County will find it easier to expedite the change than counties who have their forms printed in advance. The county utilizes a software program that allows staff to print forms on demand.

As soon as the ruling came down, the clerk's office contacted the software provider about making the necessary changes. Stover is hopeful the gender-neutral forms will be available within 24 hours.

"We're open for business and ready to serve," Stover said.

More reaction in Sunday's Los Alamos Monitor.