Wednesday night’s vote for the largely symbolic measure was 5-1 with two abstentions.
Council members who abstained or voted “no” say the city has no authority to make law on same-sex marriage and claim the issue has divided or polarized residents.
Last month, Coss and a city council member said New Mexico county clerks should issue marriage licenses to same-sex couples, and Santa Fe’s city attorney Geno Zamora advised it would be legal to do so.
A legal memo by Zamora noted:
- New Mexico’s laws do not define marriage as between a man and a woman, the definitions are gender-neutral;
- A statutory list of prohibited marriages does not list same-sex couples;
- Same-sex marriages from other states are already recognized by New Mexico law;
- To discriminate against same-sex couples would violate the New Mexico Constitution which requires equality under the law regardless of sex.
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Zamora also says same-sex marriage is legal because the state already recognizes same-marriages from other states and the New Mexico Constitution requires equal treatment on the basis of sex.
New Mexico Attorney General Gary King is in the process of coming up with an opinion on the subject, which hasn’t been adjudicated with finality in the state’s court system.