Lawmakers Oppose Gay Marriage, File NM Court Brief

Republican legislators are urging New Mexico's highest court to declare that state law prohibits same-sex marriage.

Nearly two dozen current and former GOP lawmakers made the legal pitch to the state Supreme Court in a "friend-of-the-court" brief filed in advance of a hearing later this month in a case that could resolve whether gay marriage is legal in New Mexico.

The American Civil Liberties Union of New Mexico and other supporters of gay marriage also submitted written arguments Monday, providing a preview of the legal debate that will play out in front of the five-member court at its Oct. 23 hearing.

At issue for the high court is an Albuquerque judge's ruling last month that it's unconstitutional to deny marriage licenses to gay and lesbian couples.

"New Mexico's guarantee of equal protection to its citizens demands that same sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens," Attorney General Gary King said in arguments submitted on behalf of the judge.

New Mexico law doesn't explicitly authorize or prohibit gay marriage. However, the GOP lawmakers said the law bans same-sex marriage because state statutes contain a marriage license application with sections for male and female applications and there are other provisions in law that refer to "husband" and "wife."

The Republican lawmakers, represented by a conservative Christian law group called the Alliance Defending Freedom, said anti-discrimination and equal protection guarantees in the state constitution do not provide a legal right to marriage for same-sex couples.

The lawmakers said that "the judiciary should exercise caution when asked to divine fundamental and important constitutional rights not expressly provided in the Constitution's text."

The gay marriage issue has moved to the political front burner in New Mexico since August when Dona Ana County Clerk Lynn Ellins decided independently to allow marriage licenses for same-sex couples. At least seven other county clerks have followed, some because of rulings in lawsuits brought by same-sex couples.

The gay marriage issue made its way to the Supreme Court after the state's 33 counties and county clerks statewide asked the five justices to clarify whether local officials are required to grant marriage licenses to same-sex couples.

County clerks historically have relied on the marriage license application in state law in denying marriage licenses to same-sex couples.

Ellins, in written arguments to the Supreme Court, pointed out that the state's Human Rights Act prohibits discrimination by businesses and others on the basis of sexual orientation.

"This court now has the opportunity to establish marital equality in New Mexico, and lay a cornerstone of its legacy in the history of redressing discrimination based on sexual orientation," a lawyer for Ellins wrote.

Sixteen University of New Mexico law professors also urged the court to declare same-sex marriage legal.

"The limitation imposed on same-sex couples seeking to exercise their right to marry discriminates against members of a group with a history of marginalization and exclusion," the law professors said.