By Kiera Hay

Santa Fe's city attorney says gay marriage is already legal in New Mexico, and Mayor David Coss and City Councilor Patti Bushee are urging county clerks to start issuing same-sex marriage licenses.

And if they don't, gay couples should go to court and seek an order requiring clerks to provide the licenses, says a resolution Coss and Bushee have introduced for City Council consideration. The resolution pushing for clerks to start issuing marriage licenses to same-sex couples declares that gay marriage is legal under New Mexico law. City officials also released a companion opinion from the City Attorney's Office that outlines their legal argument.

"Since New Mexico does not define marriage as between a man and a woman, New Mexico does not prohibit same-sex marriage, New Mexico already recognizes same-sex marriages from other states, and the New Mexico Constitution requires equal treatment on the basis of sex, same-sex marriage is permitted in New Mexico," the memo says.

However, the city may have a difficult time finding a county clerk who agrees with its interpretation.

Santa Fe County Clerk Geraldine Salazar, elected to the post last year, said she's "gone through a mindful process on this" and decided she won't issue marriage licenses to same-sex couples. Salazar said she doesn't feel "free and clear" to do so under the state's current laws.

"We need to acknowledge that the Legislature creates the laws in our state and our judges interpret these laws," she said. "I, as the county clerk, do not create or interpret the laws and my oath of office forbids me to act counter to the laws of New Mexico."

Mario Jimenez, chair of the county clerk affiliate of the New Mexico Association of Counties, said the group's position is that state law doesn't allow marriage licenses to be issued to samesex couples. If a law is passed making gay marriage legal, "we would comply with and welcome it," said Jimenez, who is also deputy county clerk for Dona Ana County.

Attorney General Gary King hasn't weighed in on same-sex marriage in New Mexico, although he did opine in 2011 that New Mexico should recognize same-sex marriages that took place in other states.

King's staff said Tuesday he would welcome a request for an opinion on gay marriage's legality in New Mexico.

"We don't really have anything before us (now). Attorney General King would welcome the opportunity to weigh in on a formal sense and our office would do everything we can to research it and formulate an opinion," King's spokesman Phil Sisneros said Tuesday.

City opinion

At a press conference Tuesday, Coss and Bushee cast Santa Fe as a leader that can help push gay marriage forward in New Mexico. Coss said opinions are shifting and the time has come for New Mexico "to catch up."

"I've seen the struggle in the Legislature. I've seen the hopes raised and the hopes be dashed and I think it's time to move on this issue," Coss said. "The whole country is changing. Santa Fe could lead that change here in New Mexico."

The three-page legal opinion by City Attorney Geno Zamora and assistant City Attorney Jamison Barkley argues that New Mexico's statutory definition of marriage is genderneutral and "does not include the restrictive definition 'one man and one woman.'"

The law instead emphasizes the consent of the two people who want to wed, saying that 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."

The memo also says New Mexico recognizes marriages from other states, "without regard to the sex of the parties," that a couple's gender is not among the specific prohibitions used to reject a marriage license application and that the state Constitution requires equal treatment regardless of gender.

While New Mexico's statutory marriage application form is "described in terms of male and female applicants," the form is trumped by the Constitution's Equal Rights Amendment and the specific language of the marriage statute, "which does not require that the applicants be of the opposite sex," the opinion says.

The opinion says same-sex couples who have a marriage application denied should petition in district court for a writ directing a county clerk to issue a license "because the gender of the applicants is not a statutory ground for denial."

"Same-sex marriage is legal in New Mexico. It's legal for our brothers and sisters, parents, for our nephews and nieces and for our friends," Zamora said Tuesday.

The American Civil Liberties Union of New Mexico issued a statement Tuesday saying it agrees with the city's interpretation that New Mexico law allows same-sex couples to marry. But the ACLU added that "the right of all New Mexicans to marry should be clear and explicit" and the "courts will need to provide some definitive guidance on this matter."

Precedent

The last time a New Mexico county clerk dealt with the issue was in 2004, when former Sandoval County Clerk Victoria Dunlap issued more than 60 licenses to same-sex couples. She stopped after Attorney General Patricia Madrid faxed a letter to her office saying Dunlap was violating state law.

Madrid cited the state's marriage application form, which has space for male and female applicants.

A month later, when Dunlap said she planned to begin issuing licenses again, Madrid filed a lawsuit and requested a temporary restraining order to stop her. Dunlap was under the restraining order until she left office in early 2005. The state Supreme Court, without explanation, had denied a request by Dunlap to lift the restraining order.

With the agreement of Madrid and Dunlap's predecessor, a district court judge dismissed the litigation three days after Dunlap left office, meaning a definitive court decision was never made.

Dunlap defended her actions, saying at the time that what she did wasn't illegal and that "the law is wide open."

Since then, attempts to define marriage in New Mexico as specifically between a man and a woman have failed in several legislative sessions. A proposed constitutional amendment to legalize gay marriage also failed in this year's legislative session.

Coss and Bushee's resolution, which will be formally introduced at Santa Fe's next council meeting March 27, would reiterate the major points of the city's legal stance, including that a samesex couple denied a marriage license should file a writ in district court.

The resolution says that Santa Fe "has always been a proud leader in recognizing basic human rights and in fighting discrimination" and notes that "the struggle for equality among lesbian, gay, bisexual, and transgender people is the modern face of the Civil Rights Movement."

"We strongly encourage New Mexico's County Clerks to follow state law and issue marriage licenses to loving, committed couples who have the right to marry the person they love, including same-sex couples," the resolution says.

Coss said he doesn't anticipate any opposition from the city council's seven other members.

(c)2013 the Albuquerque Journal (Albuquerque, N.M.)