Same-sex marriage: Will New Mexico become 15th state to allow it?

New Mexico's Supreme Court heard two hours of arguments over whether it should recognize a right for same-sex couples to marry. Questioning from the bench was vigorous and at times pointed.

Barry Massey/AP
A crowd gathers in front of the state Supreme Court building in Santa Fe, N.M. on Wednesday Oct. 23, to get a seat for a hearing that could decide whether gay marriage is legal in New Mexico.

Lawyers on both sides of the contentious debate over same-sex marriage urged New Mexico’s Supreme Court Wednesday to take bold action and issue a definitive ruling ending the legal confusion over whether gay men and women enjoy a right to marry in the state.

The five justices presided over two hours of oral argument examining how to interpret ambiguous state marriage laws that neither authorize nor forbid marriages of same-sex couples.

The justices were also asked to embrace a broad reading of the state constitution’s equal protection provisions to require that same-sex couples be treated equally for purposes of marriage in New Mexico.

“They are all interpretations of the same statute and the same constitution,” Justice Charles Daniels observed during the hearing. “And there can be only one answer.”

A lawyer representing county clerks said state officials need definitive guidance on the law from the high court – and they need it now. “We have county clerks who are clearly struggling on this issue,” he said.

The high court hearing thrust New Mexico onto the center of a national stage on the issue just days after New Jersey became the 14th state to recognize same-sex marriages.

Supporters of gay marriage are hoping that the New Mexico high court will soon make their state the 15th to embrace equal marriage rights regardless of sexual orientation.

The hearing took place before a gallery packed with members of the media and observers. It was also live-streamed over the Internet, allowing observers across the country (including this reporter) to watch the proceedings on-line.

Chief Justice Petra Jimenez Maes said at the conclusion of the hearing that the justices would deliberate and announce a decision “at a later time.”

Questioning from the bench was vigorous and at times pointed, particularly in response to arguments presented by a lawyer representing state legislators opposed to recognition of same-sex marriages.

James Campbell, a lawyer with the conservative group Alliance Defending Freedom, said the state could rationally exclude same-sex couples from marriage because the government had an interest in “channeling naturally procreative relationships” into marriages.

Justice Edward Chavez asked which state statute set out that goal. And he noted that fertility is not a requirement to obtain a marriage license in New Mexico.

Mr. Campbell said the court should look beyond the statute to a common understanding shared by other states.

Justice Charles Daniels also challenged the assertion that the ability to procreate was a justification to maintain marriage as an exclusively heterosexual institution.

Most of the statutes involving the benefits of marriage have nothing to do with having children, he said. They involved being permitted to file joint tax returns, inheritance rights, and ownership of homes.

He added that they were “all kinds of things that aren’t pegged to whether or not they have children.”

Maureen Sanders, a lawyer for same-sex couples seeking marriage licenses, urged the court to use its power to end discrimination against her clients and thousands of other same-sex couples in the state.

“Today is an historic moment in the history of New Mexico,” she said. “This is an opportunity for the court to protect important civil rights previously denied to residents of this state.”

She argued that the justices should find that the state constitution requires that gay men and lesbians have an equal right to marriage.

Justice Chavez asked why it was the responsibility of the state Supreme Court, rather than state lawmakers, to make such a determination.

Ms. Sanders told him that the court was the guardian of the people’s rights and that the substance of those rights should not be subject to a vote.

The same-sex marriage issue accelerated into a statewide legal battle last summer after eight of New Mexico’s 33 county clerks began issuing licenses permitting same-sex couples to marry. More than 1,450 same-sex couples have been issued licenses.

Several state judges handed down decisions supporting the same-sex couples, and the issue was appealed to the state Supreme Court.

State lawmakers have been divided over how best to proceed. Gay marriage bans and a constitutional amendment recognizing same-sex marriages have both failed to pass the Legislature.

The case is Griego v. Oliver (34,306).

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