Updated: 5:00 p.m. MDT
SANTA FE, N.M. — New Mexico’s highest court stepped into the fray over gay marriage on Wednesday, with the state attorney general and gay rights advocates urging justices to order county clerks statewide to allow the unions.
The Supreme Court heard from lawyers in a case that could determine whether gay marriage is legal across New Mexico. The five justices will issue a decision later.
At issue is an Albuquerque district judge’s ruling in late August that denying marriage licenses to gay and lesbian couples is unconstitutional.
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County clerks statewide have asked the justices to clarify state law because eight of the 33 clerks are issuing marriage licenses to same-sex couples. Their lawyer, Daniel Ivey-Soto, told the justices a uniform rule is needed.
“We have county clerks who are truly struggling with this issue on a daily basis,” he said.
To date, he said, nearly 1,500 same-sex licenses have been issued in New Mexico.
The state doesn’t explicitly prohibit or authorize gay marriage. However, the marriage laws – unchanged since 1961 – include a marriage license application with sections for male and female applicants. There also are references to “husband” and “wife.”
The current and previous state attorneys general have said the law effectively prohibits gay marriage. But Attorney General Gary King – a Democrat – contends such a prohibition is unconstitutional. King’s office defended the Albuquerque judge who ordered marriage licenses be granted to same-sex couples in two counties.
Fourteen other states and the District of Columbia allow for same-sex marriage either through court rulings, legislation or voter referendums.
The New Mexico case has drawn attention from national activists on both sides of the issue.
The American Civil Liberties Union and the National Center for Lesbian Rights represented same-sex couples in the case. They contend gay marriage mu st be allowed because of constitutional guarantees of equal protection under the law and a state constitutional prohibition against discrimination based on sexual orientation.
“Today is a historic moment in the history of New Mexico because today this court is given the opportunity to give credence to the notion of equality under the law is what New Mexico is about,” lawyer Maureen Sanders, who represents same-sex couples, told the justices.
A lawyer for a group of nearly two dozen former and current legislators – all Republicans except one – urged the justices to declare that marriage is between a man and woman.
“By redefining marriage to be a genderless institution, there is no longer an inherent link between procreation and marriage,” said James Campbell, an Arizona attorney for a conservative Christian law group called Alliance Defending Freedom.
Justice Charles Daniels told Campbell there is nothing in the law that refers to procreation and chil drearing as the government’s purpose for marriage.
“The real debate over this is a religious debate,” Daniels said.
Campbell disagreed and said the Legislature – not the court – should decide the social question of same-sex marriage.
New Mexico courts have become a battleground over gay marriage in the past two months after the Dona Ana County clerk independently decided to start granting marriage licenses to same-sex couples. Seven other clerks followed, some in response to orders by lower courts.
Proposals to ban gay marriage have failed in the Democratic-controlled Legislature over the years as well as measures to establish domestic partnerships for same-sex couples. A proposed constitutional amendment to allow gay marriage, which would have required voter approval, died earlier this year in a legislative committee.
State Sen. William Sharer, a Farmington Republican, said a constitutional amendment will be needed to resolve the gay marriage i ssue regardless of the outcome of the court case.
“No matter what their decision is the issue will not be settled until the people speak,” Sharer said after the hearing.
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