Santa Fe City Attorney says same-sex marriage already legal in NM (updated)

The Santa Fe City Attorney said in a legal memo that he believes gay marriage is already legal in New Mexico.

The legal memo, along with a resolution declaring same-sex marriage legal, is available online thanks to the progressive group ProgressNow New Mexico. It has been embedded at the bottom of this post.

The Santa Fe Reporter was at the press conference announcing the resolution and legal memo.

“We are the last group that is allowed legally to be discriminated against,” [Santa Fe city councilor Patti] Bushee, who’s openly gay, told the crowd. “It’s uncalled for. It needs to change.”

“My daughter is gay,” [Santa Fe mayor David] Coss said. “She has a partner who is a lovely woman, and as a dad, I’d just like to walk her down the aisle some day. And I’ll never get to do that if we don’t move on these issues in Santa Fe.”

The city attorney Geno Zamora wrote in his legal memo:

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.

Where or not these legal arguments stand up in court is an open question.

This comes after a legislative session where an attempt to put a constitutional amendment to legalize same-sex marriage failed in a House committee. This is not the preferred route by a number of gay-marriage advocates; they see it as a moral and civil rights issue, so don’t think it is appropriate to vote on it.

An attempt to define marriage as strictly between one man and one woman failed in a House committee as well.

In 2004, a Sandoval County Clerk legalized same-sex marriage using similar logic. That lasted just eight hours.

Answering a question on Twitter from KUNM reporter Elaine Baumgartel, Bernalillo County Clerk Maggie Toulouse Oliver wrote:

@elainewave trying to get familiar w the argument but clerks are still likely hands-tied w statue req male/female applicants on license form

— Maggie T. Oliver (@ClerkMaggie) March 19, 2013

The timing is interesting. It comes just after the legislative session and a week before the United States Supreme Court hears a case on same-sex marriage. Meanwhile, polls show support for same-sex marriage at all-time highs.

Update:

The New Mexico chapter of the American Civil Liberties Union supports this interpretation of the law.

“Committed, loving same-sex couples deserve the same dignity and respect as opposite-sex couples, and this truth is already reflected in our current state laws. We believe that the current New Mexico State Constitution and the state marriage statute provide same-sex couples the same marriage rights as opposite-sex couples,” said ACLU of New Mexico Executive Director Peter Simonson. “However, the right of all New Mexicans to marry should be clear and explicit. The courts will need to provide some definitive guidance on this matter.”