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New Mexico

Legal fight expands in N.M. over same-sex marriage

Thursday, July 4, 2013
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SANTA FE, N.M. — Same-sex couples are asking the state Supreme Court to decide whether New Mexico recognizes gay marriages from other states, potentially providing them a range of benefits involving tax, health and inheritance laws.

The lawsuit announced Wednesday broadens the legal questions before the state’s highest court on the issue of same-sex marriage.

Two Santa Fe men brought a case last week asking the Supreme Court to order the local county clerk to issue them a marriage license, which had been denied.

The latest lawsuit, which was filed late Tuesday, also seeks to have the court declare that gay marriage is legal but poses an additional question on whether New Mexico recognizes same-sex marriages from other states.

Lawyers said it’s important for the court to answer the question about out-of-state gay marriages because of the recent U.S. Supreme Court ruling that struck down part of the federal Defense of Marriage Act, which had prevented same-sex couples from qualifying for federal tax, health care and pension benefits otherwise available to married couples. The lawsuit said some federal and state benefits may not be provided if a couple lives in a state that doesn’t recognize same-sex marriage.

“With all barriers to federal recognition removed, our state cannot stand by as thousands of same-sex couples, many of whom were married out of state, continue to be denied those protections,” Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, said in a statement.

The case was filed on behalf of six same-sex couples from Albuquerque, Santa Fe, Farmington and Jemez Springs by the ACLU, the National Center for Lesbian Rights and several New Mexico attorneys. Some of the couples are seeking to be married in New Mexico while others want legal questions resolved about their out-of-state marriages.

The lawsuit said one Albuquerque man in the case is a state worker and the couple is taxed on state-provided health insurance benefits for his partner because New Mexico doesn’t recognize their out-of-state marriage. Domestic partners can be covered by state government’s health insurance but benefits are taxed as income, which wouldn’t happen if were a married couple.

There’s no provision in state law specifically authorizing or prohibiting gay marriage. County clerks have denied marriage licenses to same-sex couples in part because there is a model marriage license application form in state statutes that contains sections for male and female applicants.

The latest lawsuit, much like the earlier one, contends that denying marriage licenses to same-sex couples violates the New Mexico Constitution, including its Equal Rights Amendment prohibiting gender-based discrimination and provisions that guarantee due process and equal protection under the law.

Attorney General Gary King issued a non-binding legal analy sis last month that concluded gay marriage isn’t allowed in New Mexico because the marriage laws have “multiple gender-specific references,” including the marriage license application form.

However, the attorney general acknowledged that a prohibition on same-sex marriage may violate the constitution’s equal protection clause.

It’s uncertain whether the Supreme Court will issue a decision resolving the same-sex marriage dispute. The justices can consider cases filed directly with them, rather than as appeals from lower court rulings.

The justices have ordered King and the Santa Fe County clerk to respond to the initial gay marriage lawsuit. After receiving those legal arguments, the justices could schedule a hearing or ask for additional briefing by lawyers. The court also could deny the petitions by same-sex couples for procedural reasons without answering whether gay marriage is legal or the justices could order local officials to grant marriage licenses as requested.

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