New Mexico Gay Marriage Battle Heats Up As State Supreme Court Hears Arguments

By Zelie Pollon

SANTA FE, N.M., Oct 23 (Reuters) - The New Mexico Supreme Court will hear arguments on Wednesday on whether same-sex couples should be allowed to wed in a state where such unions are, for the time being, neither expressly recognized nor prohibited by law.

Stepping into an intensifying and often bitter national debate over same-sex matrimony, the court agreed last month to settle the matter for New Mexico as a whole after some counties began issuing marriage licenses to gay and lesbian couples.

Currently eight New Mexico counties allow gay couples to marry, and more than 900 couples have filed for same-sex marriage licenses since clerks in those jurisdictions started issuing them in recent months, some voluntarily and some under court order.

At least two New Mexico judges have upheld gay marriage under provisions of the state constitution, including cases that apply to counties encompassing the state's largest city, Albuquerque, and the state capital, Santa Fe.

Meanwhile, a number of Republican state lawmakers have filed a lawsuit challenging the authority of the clerk of Dona Ana County, which includes the state's second-most populous town, Las Cruces, to hand out marriage licenses to gay couples there.

The debate reached a crescendo when all 33 county clerks in the state joined the American Civil Liberties Union and the National Center for Lesbian Rights in petitioning New Mexico's high court to decide the issue on a statewide basis.

All five justices concurred last month in ordering a review of the case.

Wednesday's oral arguments come two days after New Jersey Governor Chris Christie, a Republican seen as having national political aspirations, agreed to drop his appeal of a court decision that effectively legalized gay marriage in his state.


"What's happening in New Mexico is part of a growing national momentum across the country," said Shannon Minter, legal director at the National Center for Lesbian Rights. "New Jersey became the 14th state to allow same-sex couples to marry; we hope New Mexico will be the 15th."

Some gay marriage opponents have also welcomed the intervention of the state Supreme Court.

"We need to have a ruling one way or the other instead of, 'My county can, yours can't,'" said state Representative Anna Crook, a Republican from the town of Clovis who is one of the state lawmakers who have joined the lawsuit in Dona Ana County.

Her group has likewise filed a friend-of-the-court brief urging the five justices to side with those who insist that the state only recognize marriage as between one man and one woman.

The state's constitution is vague on the issue, referring to marriage as a union between two people, without explicitly restricting the institution of matrimony to straight couples.

But Republican state Senator Bill Sharer argues that New Mexico's constitutional definition of marriage, which he said is unique among the states, is a century-old construct intended primarily to outlaw polygamy, or plural marriage.

Confining marriage exclusively to heterosexuals went without saying, according to Sharer, who has led the charge against same-sex unions in the state.

"For almost all of human history, except the last 10 years, people understood what marriage was," he said. "About 10 years ago, people got confused."

Others, including Republican Governor Susana Martinez, have said the issue should be put to voters rather than decided by the courts. Gay rights advocates counter that the courts are the most appropriate forum for deciding civil liberties.

"Your rights are not subject to votes. That's why we put rights into the constitution, and why courts are put in a position to uphold these rights," said Peter Kierst, an outside counsel for the ACLU.

He said the plaintiffs in the case would ask the justices to support same-sex marriage under constitutional and statutory principles barring discrimination and providing equal protection under the law.

Alex Hanna and his partner, Yon Hudson, were among those who went to court after initially being denied marriage licenses in Santa Fe County, before a district judge ordered the county clerk there to issue licenses to same-sex couples.

"Obviously we're very happy the Supreme Court is finally stepping in," Hanna said. "We're confident that the Supreme Court will uphold the district court rulings and that it will be a state law very soon."

No ruling from the bench in the case is anticipated on Wednesday. Lawyers expect the high court to render its decision by year's end. (Reporting by Zelie Pollon; Editing by Steve Gorman and Cynthia Johnston)



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