Tuesday, July 23, 2013

New Mexico AG Announces He Won't Defend State's Marriage law

Interesting news out of New Mexico today. Democratic Attorney General Gary King has announced that he is not going to defend the state against a lawsuit that seeks to declare that same-sex couples have a right to marry in New Mexico (because he believes that the state's equal protection guarantees demand marriage equality), but he is also arguing that the particular lawsuit be thrown out on procedural grounds.

The Santa Fe New Mexican reports:
In written arguments filed with the court, King said the justices should invalidate the state’s ban on gay marriage if they agree to resolve the issue in a lawsuit filed by two Santa Fe men who were denied a marriage license. 
King, a Democrat who plans to run for governor next year against Republican Gov. Susana Martinez, said New Mexico law effectively doesn’t allow gay marriages although there’s no statutory provision that specifically prohibits, or authorizes, gay couples to be married. 
“New Mexico’s guarantee of equal protection to its citizens demands that same-sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens,” King said in the filing. 
The five-member court had asked King’s office to respond to the lawsuit. No hearing has been scheduled in the case so far, and it’s uncertain whether the Supreme Court will issue a decision resolving the same-sex marriage dispute. 
The lawsuit was filed directly with the justices to try to get a speedy decision. However, the court could decide that the case should be handled differently and has to work its way through the legal system as an appeal from a lower court ruling.
New Mexico is an interesting locus for battles around marriage equality because it is one of the very few states in the Union which does not have explicit statutory or constitutional language barring same-sex marriage.

It will be interesting to see what steps the New Mexico Supreme Court takes to resolve this issue. The last state Supreme Court to enact marriage equality was Iowa, which did it by a unanimous vote in 2009 in Varnus v Brien. Other state courts which have ruled in favor of marriage equality are California, Massachusetts, and Connecticut

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