Same-Sex Marriage Already Legal In New Mexico?

According to the City Attorney of Santa Fe, there is no legal bar to same-sex marriage in New Mexico:

Santa Fe officials on Tuesday urged county clerks to provide same-sex couples with marriage licenses, claiming that same-sex marriage was legal in New Mexico.

In a legal memo, City Attorney Geno Zamara explained that the state’s definite of marriage was gender-neutral and therefore did not prohibit same-sex marriage. He also noted that the constitution of New Mexico prohibits denying equality under the law on the basis of sex.

“New Mexico law does not define marriage as between a man and a woman. Nor does New Mexico law prohibit same-sex marriage. New Mexico already recognizes same-sex marriages performed in other states and our Constitution requires equal treatment on the basis of sex. Same-sex marriage is legal in New Mexico,” Zamara concluded.

At a press conference, Mayor David Coss and Councilor Patti Bushee said they had sponsored a resolution expressing support for same-sex marriage. The resolution will be introduced at the next City Council meeting.

“Santa Fe is a city of respect, acceptance, and diversity that embraces all of our residents,” Coss said. “I sponsored this resolution because all loving, committed couples should have the right to marry regardless of their sexual orientation.”

Santa Fe County Clerk Geraldine Salazar, however, said she had no plans to issue marriage licenses to same-sex couples until the law was changed.

“I would love to be able to issue marriage licenses [to same sex couples] but under the current law, I feel I’m not free and clear to do so,” she told the Santa Fe New Mexican. “The Legislature creates the laws and the judges interpret the laws and I as a county clerk do not create or interpret laws. And I feel that my oath of office does not allow to me act counter to the laws of New Mexico.”

I smell a test case coming.

FILED UNDER: Law and the Courts, Quick Takes,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. edmondo says:

    “….as a county clerk do not create or interpret laws. And I feel that my oath of office does not allow to me act counter to the laws of New Mexico.”

    What part of this legal interpretation did she not understand?

    In a legal memo, City Attorney Geno Zamara explained that the state’s definite of marriage was gender-neutral and therefore did not prohibit same-sex marriage. He also noted that the constitution of New Mexico prohibits denying equality under the law on the basis of sex.

    “New Mexico law does not define marriage as between a man and a woman. Nor does New Mexico law prohibit same-sex marriage. New Mexico already recognizes same-sex marriages performed in other states and our Constitution requires equal treatment on the basis of sex. Same-sex marriage is legal in New Mexico,” Zamara concluded.

  2. OzarkHillbilly says:

    Been to Santa Fe a time or 2. I am not surprised.

  3. Gromitt Gunn says:

    @edmondo: I’m guessing that she understands that as a County Clerk, she’s obliged to follow the legal interpretations of her County Attorney, and not the City Attorney of one of the Cities that happen to be located within her County.

  4. edmondo says:

    @Gromitt Gunn:

    Or she hasn’t found out yet that she has a gay kid.

  5. jd says:

    @edmondo: “Or she hasn’t found out yet that she has a gay kid.”

    Exactly that.

  6. HarvardLaw92 says:

    Confusing. Either NM law defines the concept as gender specific or it doesn’t. So which is it?