AG opinion sought on New Mexico’s vague marriage law

Staff Reports

LAS CRUCES, N.M. — A New Mexico county clerk is asking Attorney General Gary King for a legal opinion on whether county clerks may issue licenses for same-sex marriages.

Dona County Clerk Lynn Ellis is making the request through a state legislator and says she’s ready to begin issuing licenses for same-sex marriages if the resulting opinion allows it.

Ellis announced her request Wednesday, a day after Santa Fe city officials said they believe New Mexico law allows county clerks to issue licenses for same-sex marriages.

Santa Fe Mayor David Coss and a city cuncil member said Tuesday that New Mexico county clerks should issue marriage licenses to same-sex couples, and Santa Fe City Attorney Geno Zamora says says it would be legal to do so.

According to Zamora, New Mexico law defining marriage is gender-neutral and lacks any prohibition on same-sex marriage.

A legal memo by Zamora notes:

  • 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.

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.

Santa Fe officials have urged county clerks to start issuing same-sex marriage licenses.

A 2004 opinion by then-Attorney General Patricia Madrid declared that 64 licenses issued to same-sex couples by the Sandoval County clerk were invalid. A court later ordered the clerk to not issue licenses for same-sex marriages.

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