The Unusual Role of Elected County Clerks in Resolving the Question of Same-Sex Marriage in New Mexico

Vol. 37 No. 2

By

Stephen C. Ross is the county attorney of Santa Fe County, New Mexico.

New Mexico has joined 16 states that permit same-sex marriage. Arguments were heard on October 23, 2013, by the New Mexico Supreme Court on a Verified Petition for Superintending Control filed by 31 of the 33 county clerks. Docket No. 34,306. The petition requested that the court clarify the status of same sex marriage in New Mexico. On December 18, the court unanimously decided that same-sex marriage in New Mexico is lawful.

How did the issue of same-sex marriage come to be raised by elected county clerks rather than by a same-sex couple desiring to marry or by a public advocacy group? In New Mexico, as in most other states, the authority to issue marriage licenses rests with the elected county clerks. It is a ministerial task, requiring verification that the persons seeking the license are of age (or have the consent of parents), have completed the statutory marriage application, and are not creating an incestuous relationship. The responsibility to issue licenses put the county clerks in the awkward position of determining, in the spring and summer of 2013, whether the statutes or laws of the state permitted issuance of licenses to persons of the same sex.

The New Mexico marriage statutes are old, some dating to 1859; the most recent are from the early 1960s. The earliest statutes did not contain gender specific references or restrictions on the sex of parties to a marriage; marriage was referred to simply as a “contract” between “consenting parties.” N.M. Stat. Ann. § 40-1-1. Despite this gender-neutral language, it is unlikely that the drafters in the 1860s territorial legislatures intended that same-sex marriages be permitted. Subsequently, beginning in statutes enacted in the early 1960s, and particularly in N.M. Stat. Ann. § 40-1-18, the legislature began to refer specifically to the sex of the contracting parties. N.M. Stat. Ann. 40-1-18 provided a form of application, license, and certificate of marriage that refers to the “bride” and “groom” and the “male applicant” and “female applicant.” Other statutes define the marital relationship using gender specific language like “husband” and “wife.” See, e.g., N.M. Stat. Ann. §§ 40-2-1, 40-2-2, 40-2-3, 40-2-8, 40-3-1, 40-3-2, 40-3-3, 40-3-4, 40-3-12(B), 40-3-12(C). The term “husband” is defined as “[a] married man”; the term “wife” is defined as “[a] woman united to a man by marriage.” Black’s Law Dictionary 1598 (6th ed. 1990). Reading the statutes in pari materia, one could conclude that the New Mexico marriage statutes only permit males to marry females, although no cases had made this point. Because of this, the legislature made several unsuccessful attempts in recent years to address the apparent restriction on the sex of the parties to the marriage; numerous bills were introduced to eliminate gender constraints, create civil unions, and even to place a question on the ballot for a constitutional amendment. All failed. But the most significant question, unresolved through the history of the marriage statutes, was whether the gender specific restrictions are constitutional under the equal protection clause of the New Mexico Constitution or its equal rights amendment.

Given that background, on the morning of February 20, 2004, Sandoval County Clerk Victoria Dunlap, reading the aforementioned marriage statutes to permit it, began issuing marriage licenses to otherwise qualified same-sex couples. In eight hours, 66 licenses were issued, prompting then-Attorney General Patricia Madrid to quickly issue an opinion stating that “New Mexico statutes, as they currently exist, contemplate that marriage will be between a man and a woman.” A little over a month later, the state district court issued a temporary restraining order against the clerk, ordering the clerk to immediately cease issuing licenses until the legality of the action could be determined. The TRO remained in place until after the expiration of the clerk’s term and no formal judicial determination was forthcoming. The matter went dormant until 2013.

In early 2013, several same-sex couples and the American Civil Liberties Union filed a petition for Complaint for Declaratory and Injunctive Relief declaratory in the Second Judicial District Court. The case named as the nominal defendant Bernalillo County Clerk Maggie Toulouse Oliver. Griego v. Oliver, No. D-202-CV-2013-02757. Shortly thereafter, the Santa Fe city attorney issued a written opinion that the New Mexico statutes described above permit same-sex marriage. This was followed by an opinion from the present Attorney General, Gary King, in which he concluded that the marriage statutes do not permit same-sex unions, but that the equal protection clause of the state constitution invalidates any restrictions, to the extent they exist, on same-sex marriage.

At this point, things got interesting. In June, a Verified Petition for Writ of Mandamus was filed against Santa Fe County Clerk Geraldine Salazar, first in state district court, then directly in the New Mexico Supreme Court, by a same-sex couple denied a marriage license on June 6, 2013 (Docket No. 34,216). Within weeks, the Supreme Court refused to accept the case, apparently because the New Mexico Constitution does not grant original jurisdiction in the Supreme Court for a writ of mandamus against a local elected official. That filing appeared to prompt a similar filing by the plaintiffs in the Bernalillo County case, which was also denied by the high court. Both cases received a cryptic notation from the court that the parties retained the right “to request expedited review” of any lower court ruling.

On August 21, 2013, Doña Ana County Clerk Lynn Ellins, himself a lawyer, began issuing marriage licenses on the grounds that the restrictions in the marriage statutes were unconstitutional, that same-sex marriage was a fundamental right, and that strict scrutiny was the proper standard of review. A Petition for Writ of Mandamus and Request for Immediate Stay was filed against the clerk on August 29, 2013, in state district court (No. D-307-CV-2013-02061) by a number of state legislators who asserted that the licenses were not authorized by the marriage statutes. Two days later, the plaintiffs in the Santa Fe County case, having regrouped after the state supreme court ruling, refiled their petition for writ of mandamus in state district court; soon thereafter Judge Sarah Singleton executed an alternative writ of mandamus to the Santa Fe county clerk directing the clerk to either begin issuing marriage licenses to same-sex couples or show cause why not. A hearing was scheduled on the assumption that the clerk would show cause. But Ms. Salazar elected instead to issue licenses beginning August 23. The first two applicants to receive licenses were a sitting Santa Fe County Commissioner, Elizabeth “Liz” Stefanics, and her partner (now spouse), Linda Seigle. They were married by the county probate judge within an hour after receiving the license from the county clerk.

Almost simultaneously with the issuance of the alternative writ in Santa Fe County, Taos County Clerk Anna Martinez was issued an alternative writ of mandamus by a district court judge there (No. D-820-CV-2013-00295), and she began issuing same-sex marriage licenses immediately. The next day, Peggy Carabajal, the Valencia County clerk, and Melanie Rivera, the San Miguel County clerk, neither of whom were subject to litigation, began issuing same-sex marriage licenses. The same day, District Judge Sheri A. Raphaelson issued an alternative writ of mandamus directing Los Alamos County Clerk Sharon Stover to begin issuing marriage licenses or to show cause why not, and during the show cause hearing, Clerk Stover was ordered to begin issuing licenses immediately. The following day, litigation was commenced in the Thirteenth Judicial District Court to compel Sandoval County Clerk Eileen Moreno Garbagni to issue same-sex marriage licenses. A few days after that, on September 3, Grant County Clerk Robert Zamarripa was served with a petition for alternative writ of mandamus, and the same day additional litigation was commenced against Valencia County Clerk Peggy Carabajal. In addition, during this period, the Santa Fe County Clerk was joined as a party defendant in the original Bernalillo County case by plaintiffs, one of whom had a serious terminal illness, seeking immediate relief.

Second Judicial Court Judge Alan Mallot, responding to the urgency of the terminal illness, called the parties in the Bernalillo County case together to attempt to reach a quick resolution, not just of the emergent situation, but of the entire issue. The parties (the two county clerks, the state Attorney General, the real parties in interest, and the ACLU), agreed to stipulate to facts to quickly advance the litigation, and Judge Mallot issued a ruling declaring that the marriage statutes do not restrict same-sex unions and, to the extent that they do, the equal protection clause of the state constitution forbids such a reading. He issued a Declaratory Judgment, Injunction, and Peremptory Writ of Mandamus on August 26, 2013. Docket No. D-202-CV-2013-2757; see also Docket No. 34,306 (N.M. Sup. Ct.). The defendants, the two county clerks and the state Attorney General, elected not to appeal the ruling.

As should now be obvious, the county clerks, being statutorily assigned the task of issuing licenses, had somehow become ground zero in a grass roots movement to force the issue in New Mexico. Within days, many clerks were embroiled in complex litigation involving the proper interpretation of old statutes and the application of the equal protection clause and the equal rights amendment to the statutes. Five counties were issuing marriage licenses under court orders. Three counties were issuing licenses without a court order and facing litigation over their authority to do so. Twenty-four counties were not issuing licenses and were not facing litigation, but of those, 18 counties reported having been contacted by same-sex couples desiring to receive a license, and litigation was expected. And litigation was pending against eight counties, and writs and orders had been issued in some of the cases. Appeals were an obvious next step. There was a substantial risk of inconsistent results, and the viability of the licenses that had been issued was uncertain. Significantly, the case most ready for review by the appellate courts, the one filed in Bernalillo County and the subject of the final judgment of Judge Mallot, was not going to be appealed.

In an unprecedented step intended to create order out of chaos, the remaining 31 county clerks elected to jointly file the Verified Petition for Writ of Superintending Control in the New Mexico Supreme Court in the Bernalillo County case, which was promptly accepted by the court. This unusual step, undertaken by the elected county clerks and not the real parties in interest or the advocacy groups that had been plaintiffs in the original litigation, made defendants out of the non-appealing clerks and the state Attorney General. It was on this petition that the state supreme court held its lengthy (and probably historic) hearing on October 23.

The county clerks alleged in their petition that the blizzard of litigation and threats of litigation had a common question of law, that litigating that common question of law in 33 counties would be burdensome, expensive, and potentially inconsistent, that couples receiving licenses were justifiably concerned about their long-term validity, particularly for property, health care, inheritance, family decision-making, and government benefits. The clerks complained that in the absence of a decision, the clerks “cannot issue marriage licenses to same-sex couples with confidence of the legality of their actions . . . and the legal validity of the marriage licenses being issued . . . .” The centerpiece of the litigation was the applicability of the equal protection clause and the equal rights amendment to the archaic marriage laws. The resulting argument before the court focused on the meaning of the statutes, the standard of review to be applied in an equal protection analysis, the precedents of the court in the equal protection area, the history of discrimination against lesbians and gays, the readiness of the case for decision on the merits, and many other interesting and timely issues.

As noted, the Supreme Court issued its opinion on December 13 (see http://www.nmcompcomm.us/nmcases/nmsc/slips/SC34,306.pdf). The court found that New Mexico’s marriage laws do not permit same-sex marriage, but that “barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution.” The Court held that the state is “constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.” The unusual step taken by the clerks to achieve a consistent, statewide position on the issuance of marriage licenses worked.

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