New Mexico Judge Orders State’s Largest County To Issue Same-Sex Marriage Licenses
Three counties in New Mexico are under orders to issue licenses to same-sex couples.
A state court judge in New Mexico has ordered the state’s largest county to begin issuing same-sex marriage licenses:
ALBUQUERQUE, N.M. — A New Mexico judge on Monday declared same-sex marriage legal, ordering the clerk of the state’s most populous county to join two other counties in issuing licenses for gay and lesbian couples.
State District Judge Alan Malott ruled New Mexico’s constitution prohibits discrimination on the basis of sexual orientation.
The Bernalillo County clerk’s office in Albuquerque planned to start issuing marriage licenses to same-sex couples at 8 a.m. Tuesday.
The decision came after a judge in Santa Fe directed the county clerk there to begin issuing marriage licenses to same-sex couples on Friday. But Malott’s ruling was seen as more sweeping because he directly declared that gay marriage was legal.
Laura Schauer Ives, a lawyer for the American Civil Liberties Union of New Mexico, called it “monumental” and said the group didn’t expect such a broad decision by Malott. The judge had been asked only to order that the state recognize, on her death certificate, a dying woman’s marriage Friday in Santa Fe to her longtime partner.
But after a short hearing in which neither the counties nor the state objected to the request, Malott also ruled on the broader lawsuit by that couple and five others seeking marriage licenses.
“We were stunned and amazed,” Ives said.
However, it’s uncertain whether clerks in the state’s 30 other counties, who were not defendants in the lawsuit, will use the judge’s ruling as a signal that they can issue marriage licenses to same-sex couples. Assistant Attorney General Scott Fuqua said the decision wasn’t binding on clerks outside Bernalillo and Santa Fe counties.
Malott’s order came during a hearing seeking an order for the state to recognize the marriage of Jen Roper, who has cancer, to Angelique Neuman.
The couple wed at a Santa Fe hospital after a state district judge in a separate case ordered the Santa Fe County clerk to issue same-sex licenses. The clerk of Dona Ana County in southern New Mexico decided on his own last week to recognize gay and lesbian marriages.
“It’s been a long, long fight,” Neuman said. “I’m glad things went our way.”
Legal challenges same-sex marriage have been going on in New Mexico for the better part of a year now. As I noted back in March, some political leaders in the state were asserting back then that same-sex marriage was already legal in the state because the state’s marriage laws do not specify that the parties to a marriage must be a man and a woman. Almost immediately thereafter, lawsuits were filed and, within just the past week we’ve seen the results.
I haven’t referenced the relevant New Mexico laws, and have only had time to quickly scan through the most recent court decision, but it does strike me as problematic at some level even though I support same-sex marriage. Essentially, these judges have ruled that New Mexico’s marriage laws, presumably drafted at time when the idea of same-sex marriage was far from anyone’s mind, apply to same-sex couples regardless of what the intent of the legislators who drafted those statutes might be. While one, perhaps, can make an argument that this should be the case when, as here, the statute doesn’t specify gender, it was undoubtedly the case that the legislators who adopted these laws intended them to only apply to marriages between one man and one woman. Is it really proper for a judge many decades later to be substituting his judgment for theirs and expanding the law beyond what it was intended to say?
As noted, it’s unclear what this actually means for the rest of the state. For one thing, these orders only apply to the counties that were parties to the specific lawsuits and the orders have no binding effect on any of the other 30 counties in the state. Some County Clerk’s may decide to voluntarily comply with the orders, but others may not. Additionally, other state trial court judges are not bound by these decisions as binding precedent, so they may reach a different conclusion regarding the reach of the state’s marriage laws. Thus, it’s quite likely that we’ll see an uneven application of the law throughout the state, which would of course make no sense whatsoever.
Legislators are already vowing to appeal these cases, however, so it’s likely that the New Mexico Supreme Court, which has already recently chimed in on the issue of gay rights, will be ruling on this matter in the relatively near future.
But if the statute truly doesn’t specific a gender for marriage licenses, then why couldn’t a clerk issue a license to a same-sex couple? What law would stop him? Aren’t all actions that aren’t expressly prohibited by law allowed by default?
“…New Mexico Judge Orders State’s Largest County To
Issue Same-Sex Marriage LicensesTreat All People With The Same Respect and Dignity…”Fixed that up for you…
The specific arguments are around NM’s human rights act (newer than the marriage law) that bans discrimination on sexual orientation. The argument is that if the marriage law doesn’t specify genders, then the State cannot enforce that law in a way that restricts genders without discrimination.
I suppose it’s possible for the NM legislature to pass a new definition of marriage which may or may not pass state/federal constitutional muster. But as currently written, it’s going to be hard to present NM law as offering a specific restriction beyond traditional interpretations.
Doug, words have meaning and consequences and in this case the words used in the statute do not specify gender. If gender is not a requirement under the law, you cannot deny the license based on gender. You can’t just add licensing requirements just because you think the legislature that passed the bill meant to have those requirements.
Saw this on another site:
“Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.”
Such wording is pretty secular, cold, and legal. Nothing about tradition, history, purpose of marriage, etc.
BTW: For those who are thinking it, “consent of the contracting parties” would seem to preclude man-beast marriages.
Do other states have similar language?
@Mark:
I think this is the critical point. Laws cannot be read or interpreted in a vacuum. And so the marriage law must be interpreted with an eye to what the legislature has passed since it was established.
Further, while original intent should always be a consideration, the history of American law demonstrates that the interpretation of laws evolves as social, cultural, and technological forms evolve.
Still, I would prefer to see the legislature, rather than the courts, enact these sorts of sweeping social changes. That said, if the legislature fails to update the law in due time, one can argue that they are tacitly approving of the decision.
Yes. It’s their job.
@Doug Mataconis:
The second amendment was written at a time when a lot of weapons, ammunition, and accessories available today were far from anyone’s mind.
Does that mean the the second amendment only allows you to own flintlock rifles?
@mattbernius:
I understand this view, while being entirely unsympathetic to it.
If I were a gay man seeking to marry, would I care whether it was a court or a congress that gave me that right? Would it really matter to whom I write my thank you note? They are both legitimate branches of government. Indeed, one is designed to “check” the other.
I say this only because it seems that people make a big deal of this “legislature versus court ruling” in this context, but in other cases….it’s not so important. A legislature passes a gun law. A court overturns it. Where are the laments about legislative preferences then?
My preference, tilted as it may be, would be for gay couples to receive the recognition they seek. If they get it by statute or by ruling, neither would be more illegitimate than the other.
@James Pearce:
Don’t get me wrong.
I firmly believe that that courts can and should make such rulings. And I believe that, in certain times and places, such rulings are necessary. I can think of no better example than Brown v. Board of Ed.
It’s just that I also believe that such rulings need to be backed by legislative action, to ensure that they are not overturned.
Further, the complex truth is also that such laws need to be passed in a majority of areas as a sign that our values and beliefs, as a nation, are changing. Because, to some degree, that change in values and beliefs often has a direct effect on court rulings.
Even the courts wait to move on these decisions until the right time. There was, apparently, a lot of work done in the Supreme Court to wait to rule on race issues until the Justices believed that there was the right mix of Justices and the right case to reach a just decision. If Brown v. Board had been heard in the 30’s, I’m not sure that we would remember it in such a positive way.
It’s not one or the other, but an interchange of both.
If the legislators made an error in the tax code, would we be debating their intent versus their actual words, or would we be standing by watching it get exploited left and right?
Words have meaning. There’s no reason to twist them into knots.
Corporations are not people, the second Amendment doesn’t specify which arms a person may bear, and consenting adults can marry in New Mexico without worry over gender.
This isn’t hard stuff here.
This will go to the New Mexico Supreme Court and maybe eventually, SCOTUS, unless the Legislature gets off their duffs and clarifies the law. Another question-what says the state constitution?
Looks like the issue is a real lawyer fest.
@stonetools: If the NM Supreme Court rules that the law “implied” a gender requirement, then it might get to SCOTUS. If they hold the Legislature to the language of the law as it is, then it stops there, a matter of state law only. If they add the gender requirement, we get into “legitimate state interest” and then it becomes a free for all.
@mattbernius: Ask Glenn Greenwald. He and David are only living together as a couple because of the Brazilian courts. Anything related to SSM would not pass a Congress where Evangelicals are one fifth of the lower House.
P.s: I’m still stuck on the antispam filter, help me.
It is worth pointing out that (I am about 98% sure I am correct on this) New Mexico already recognizes marriages from other jurisdictions. So a gay couple that could afford to travel to New England or Iowa to get married is considered married by the State. These rulings are just extending that to people who wanted ti get married in their own backyard.
Doug: ” Essentially, these judges have ruled that New Mexico’s marriage laws, presumably drafted at time when the idea of same-sex marriage was far from anyone’s mind, apply to same-sex couples regardless of what the intent of the legislators who drafted those statutes might be.”
What do you think that the intent of Congress when passing the 13th, 14th and 15th Amendments was? I’ll be that ‘black president’ was not anywhere near their intent.
Is it really proper for a judge many decades later to try to mind read what legislators many decades ago may or may not have intended rather than just reading and abiding the plain language of the statute? Shouldn’t they read what it does say now, rather than guess what it was intended or not to say?
IANAL (though the oil and gas business essentially pays me to act like one), the intent and letter of laws are different things who’s resolution is something to be litigated and, in this case, it was and the not-bigots won. Yeah, it’d be nice if it was legislatively enacted, but the logical expansion of contract law should not be viewed through what legislators did not consider when said law was passed.
New Mexico marriage cert states “Holy Bonds of Matrimony”
Matrimony
: the union of man and woman as husband and wife
In 2010 an attempt was made to have “Holy Bonds of Matrimony” removed and replaced with ‘marriage’ bill failed.
Appears the intent of the marriage laws in NM is indeed Gender Specific..
It’ll be interesting to see how the right reconciles arguing against a literal reading of this statute withtheir usual argument against the Constitution evolving with the times.
@stonetools:
Article 1:
40-1-1. [Marriage is civil contract requiring consent of parties.]
Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.
…
40-1-4. [Lawful marriages without the state recognized.]
All marriages celebrated beyond the limits of this state, which are valid according to the laws of the country wherein they were celebrated or contracted, shall be likewise valid in this state, and shall have the same force as if they had been celebrated in accordance with the laws in force in this state.
…
40-1-9. Prohibited marriages.
No marriage between relatives within the prohibited degrees or between or with persons under the prohibited ages shall be declared void except by a decree of the district court upon proper proceedings. A cause of action may be instituted by the minor, by next friend, by either parent or legal guardian of the minor or by the district attorney. In the case of minors, no party to the marriage who may be over the prohibited age shall be allowed to apply for or obtain a decree of the court declaring the marriage void; but the minor may do so, and the court may, in its discretion, grant alimony until the minor becomes of age or remarries. If the parties should live together until they arrive at the age under which marriage is permitted by statute, then the marriage shall be deemed legal and binding.
Source
This article (and 40-1-9) might conceivably lend some support to those who want to argue from the intent of the authors of Article 1, Section 40:
40-1-7. Incestuous marriages.
All marriages between relations and children, including grandparents and grandchildren of all degrees; between brothers and sisters of full blood or of half blood; between uncles and nieces; and between aunts and nephews are declared incestuous and absolutely void.
Refusal to obey Constitution and former case laws and statutes is criminal perjury under Oath swearing to same would be upheld. Judge Malott also persecutes me as Pro-Se and in forma pauperis despite oath to give equal to rich and poor. I have filed Petition for Superintending Control with the NM Supreme Court, and judicial standards complaints against Judge Malott, and have proof that he was bribed in actions of CV-12-1307 and CV-12-10816 in which I am the Plaintiff. I seek the FBI investigation and want your help with his latest ruling against all laws with the same sex marriage issues as he simply violates law, regardless of how a person stands on whether or not the marriages should or should not be legal. Judge Malott with his “opinion” still has to obey the law and use the Legislature to effect a change. State ex rel. Rodriquez v. American Lefion Post No. 99, 106 N.M. 784, 788, 750 P.2d 1110, 1114 (Ct. App. ) “Act may be changed through legislative therapy, not judicial surgery., cert denied, 106 N.M. 588, 746 P.2d 1120 (1987) and 107 N.M. 16, 751 P.2d 700 (1988). He must be removed from the bench and prosecuted acting in rulings against the law, which he has done many times in my cases, including refusal to recuse or change my venue, so as to keep me imprisoned before his court to violate my due process and equal protection. I, Judge Alan Malott, do solemnly swear that I will administer justice without respect to person, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as United States District Judge under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faith fully discharge the duties of the office on which I am about to enter. SO HELP ME GOD In re Aquinda, 241 F.3d 194 “Presumption exists that a judge will put personal beliefs aside and rule according to the laws as enacted, as required by his or her Oath. 28 USCA 455(a)”. ; Judgments outside of law deny him “immunity” as he is acting outside of jurisdiction and judicial capacity. In re Williamson, 43 BR 813 “An oath is an affirmation of truth of a statement, which renders one willfully asserting an untruth punishable for perjury.”. The FBI needs to be involved here.
My CASES pending before Judge Malott CV-12-1307 and CV-12-10816
Issue: JUDICIARY
Judge Alan Malott
I am before Judge Alan Malott in two consolidated cases of CV-12-1307 and CV-12-10816, and find that he violates all Constitution, case laws and have violated me under state Statutes NMSA 38-3-3 and 38-3-9 “REFUSING” to recuse for peremptory or cause, and refusing to change venue mandated because I have much evidence that he has been bribed. I have filed judicial standards complaints and have a pending Petition for Superintending Control in the NM Supreme Court. I have a hearing before him on Sept 17 that is forced upon me by the same judge that violated me in bias and prejudice and has me imprisoned in his court despite me seeking a new judge to hear the evidence in the hearing that Malott has been bribed by NAI Maestas and Ward Commercial Real Estate with money, power, influence or political pressure to protect them in issues of tort including criminal assault and battery against me. Investigation of Judge Alan Malott by the FBI is imperative. “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”” (Emphasis added).
Due to Judge Malott’s recent ruling on marriages also defying state laws, case laws and disregarding law as he is doing to me he over-rides the NM Legislature, defeating the separation of powers. I have also contacted the FBI in Washington and asked for the Department of Justice and US Attorney to get involved in the judicial corruption of NM. Please help in this regard to get the FBI involved with Judge Malott.
State v. Southern Pacific Co., 281 P.29, 34 NM 306 “N.M. 1929 Statutes, though imperfect in form, should be upheld and sustained by the courts, if they can be construed as to give sensible effect and to render them of binding force.”
Tucker v. Outwater, 118 F.3d 930 cert denied 118 S. Ct. 562, 522 US 997, 139 L.Ed.2d 402 “Judge will be denied immunity for damages where he acts in clear absence of all jurisdiction, and knew or must have known that he was acting in such manner.”
Mann v. Conlin, 22 F.3d 100, 1994 Fed App. 122P cert denied 115 S. Ct. 193, 513 US 870, 130 L.Ed.2d 126 “When Plaintiff alleges that judge acted in non-judicial capacity court relies on functional analysis to determine whether acts are protected, meaning that one must determine whether actions are truly judicial acts, or acts that simply happen to have been done by Judges.”
Molina v. Gonzales, 994 F.2d 1121 rehearing denied 1F.3d 304 on remand 1993 WL 534, 163 “Judge has no immunity for acts taken outside of his judicial capacity, or for actions that are judicial in nature, but occur in complete absence of all jurisdiction.”
New Mexico Legalized Same-Sex Marriage
Important news for you!
You’re legally married if you had a ceremony in New Mexico. NO New Mexico State court can ever change that now due to the case law provided in this article. It does not matter what sex you are as long as you had a ceremony. Please read why and use the case law in this article if any court or Judge attempts to void your marriage.
This week there were over 100 same sex couples in civic plaza for a wedding ceremony that was performed. State District Judge Alan Malott declared Monday that New Mexico’s constitution forbids discrimination based on sexual orientation and ordered the state’s largest county, Bernalillo (which includes Albuquerque) to recognize same-sex marriages.
Now six of the 33 counties in the state have begun granting marriage licenses to same-sex couples, the Albuquerque Journal reports. County clerks throughout the state are now asking for guidance as hundreds of same-sex couples rush to say their vows. Some Judges in New Mexico effectively allowing justices to tailor the law in their personal beliefs rather than to render enforcement of the statutes as enacted by the Legislature as seen in my case.
There seems to be concerns that even though there were ceremonies and the county clerk issued licenses that these marriages could be VOIDED later on. Well, all the people who had a ceremony do not have to be concerned. In the State of New Mexico you are legally married and you will stay legally marriage until you get a divorce since this article will give you the case law to prove it. The NM Court of Appeals and family court in ABQ does not follow State Statute of marriage laws but they do follow case law of Rivera v. Rivera.
Unless my case gets overturned
You will be legally married and no Court in this state can take that away. In fact you don’t even have to file the marriage license after the signing of the certificate and you will be legally marriage in the State of New Mexico. In fact, you can alter your marriage license after it is signed and not file it and you’re still legally married. New Mexico Appeals does not follow the State Statues but they do use case law of Rivera v. Rivera. The County Clerk office will not tell you this fact since they want you to pay for a marriage license anyway. As in my case the trial Judge and the Appeals court does not follow New Mexico statutes NMSA 40-1-10, 40-1-11, 40-1-19, 40-3-8, 40-3-9, 40-3-10, 40-3-11, 40-3-1340-3-14, 40-3-16, 40-13-3.1, 40-13-5, 40-4-20, 42-4-7, 42-4-13, 42-4-14, 42-4-16, 42-4-17, 42-4-18, and 42-4-20 which all are marriage laws. All these laws were used in my case but the trial Judge and the Appeal courts did not follow these laws because if they had my ceremony would have been void, and the other party would have been charged with crimes. The Appeal Court holds that a marriage is valid with no compliance with any of these state statutes, and even where it lacks a marriage license and certificate, rendering the NM Legislature moot and in total disregard for any statutory laws.
In fact, you will not find this information out unless you make it as far as I have in a family law case — to the Appeals court. Again, New Mexico does not require a marriage license to be marriage in NM to be filed, so you having a marriage license to prove your marriage does not matter. What matters is that you had a ceremony. End of story.
This is how it works
The County Clerk issues a marriage license. A couple has a ceremony with two witnesses. Then the State Statute reads that a marriage license is required to be filed. But according to the Court of Appeals this is false — they do not follow this law — they follow Rivera V. Rivera. You don’t need to have a marriage license in the State of New Mexico due to the case of Rivera v. Rivera.
Now, if the State ever comes back and wants to VOID any of these same sex marriages, use my case and your marriage can’t be overturned to be VOID. The case is: Pierson v. Long. Case Number DM 2012-002781, Appeals 32688.
This is why…
Because in my case there was a ceremony, the groom forged a marriage license and no marriage license was ever filed with the State. That’s right — no marriage filed and the marriage license was forged by the groom. Given this fact — the Family court Judge Hadfield granted a divorce when it was argued that the marriage was to be void due to “no intent”, fraud, and no marriage license filed, which by statute is required. I used all the statute laws for marriage including that the law requires the marriage license to be filed within 90 days but the statute laws did not matter in my case – therefore will not matter in your ceremony neither- meaning your completely legally married. Since the Judge and Appeal ignore the requirements of marriage set by statute law they must ignore the requirements in your marriage too.
An appeal was presented, due to errors this judge committed during court and regarding errors in discovery. The Appeal Court has replied stating that due the Rivera v. Rivera case — no marriage license is required to be married in the State of New Mexico and the only thing that matters was our age or if there was another marriage at the same time.
My case is still in the appeals court and hoping for a final decision soon but thus far this is how New Mexico courts ruled. My case was not a same-sex marriage but that doesn’t matter what matters is that you “had a ceremony.” End of Story. This is how the Appeals court wrote their response.
Therefore, if you or someone you know who is a same-sex marriage case and any court wants to void the marriage they are incorrect and they must follow these case law I am providing. You can use both the Rivera v. Rivera case and you can you my case Pierson v. Long which allows parties to be married without a valid marriage license as long as there was a ceremony, with only that, you are marriage in New Mexico. The only thing New Mexico does not allow is being married to several people at same time and under age marriages are not approved.
So Congratulations to everyone who is now legally married in New Mexico since you had a ceremony regardless of your sex, regardless of a failed or bogus marriage license.
If there can be one silver lining to the wrong that has happened to me by the other party in my case, the State of New Mexico justice system, and the Judge it’s this…that your marriage ceremony is completely legal. I am completely for same sex marriage but what I am against is forgery, fraud, perjury by the other party and the many errors the Judge did in my case and has been overlooked and ignored on appeal. The tort damages that was done to me has caused such trauma to me that I have no desire to ever have an intimate relationship again- due to the other parties actions and to State of New Mexico failing to recognize the crimes.
If you’re questioning “why the groom forged marriage license?” He wanted to personally benefit in my income and free service, he wanted to abuse my trust, and he wanted to take advantage of me. And if I passed away, he did not want my son to benefit from any inheritance that was a joint adventure with him (the other party) including bank accounts and property which was to be in my name but those are other fraudulent promises by the other party not mentioned in this article. They call this, GREED! The other party was not expecting that I would find out about the crimes, but I did. It’s a shame New Mexico DA, the Police department, the Judges involved has thus far has allowed this forgery and fraud of a marriage license because they have yet to charge the other party with a crime. Apparently, they allow forgery of a marriage license in New Mexico to be legal.