SCOTUS Denies Cert In Important Anti-LGBT Rights Case

Good news out of the United States Supreme Court today! The high court decided not to hear arguments in the case of Elane Photography v. Willock where the New Mexico State Supreme Court had ruled that the denial of photographic services  to a same-sex couple who wanted their commitment ceremony  by a private firm violated the state's anti-discrimination ordinance. The private company who denied the services appealed the unanimous state Supreme Court ruling to the U.S. Supreme Court, saying  that being forced to photograph the same-sex commitment ceremony violated their religious beliefs and should trump the public accommodations section of New Mexico's human rights law.

Slate reports and analyzes this case:

"The court has: A) reaffirmed the status quo [the justices still haven't stated that religious objections can be used to override anti-discrimination laws], and B) relieved gay rights activists, who dearly hoped the court would stay away from this case. It's just too messy. By my count, it involves at least four separate issues: Hybrid rights [i.e., free speech rights combined with free exercise rights]; compelled speech; photography-as-speech; and a religious objection to anti-discrimination statutes. It's just too much for one case."

LGBT groups are definitely happy that SCOTUS took a pass on this case, because the question of whether religious freedom can trump anti-discrimination statutes has still not been addressed by the high court. And with the Court currently considering whether corporations have religious freedom exercise
rights which exempt them from Obamacare provisions, this a question people in favor of LGBT equality are not confident would turn out the way we want.

Hat/tip to Joe.My.God

Santa Fe Elects Openly Gay Latino Mayor

Javier Gonzales was elected mayor of Santa Fe, New Mexico last night with 43% of the vote. He is the first openly gay Latin mayor to be elected to head New Mexico's capital city. He is the son of a former Santa Fe mayor.

Gonzalez, 47, faced off against another openly LGBT candidate for the position, City Councilperson Patti Bushee.

The Santa Fe New Mexican reports:

A scion of a political family, Gonzales burst into the political scene at the age of 27, when he was elected to the first of two terms to the Santa Fe County Board of Commissioners. Gonzales served for four consecutive years as state Democratic Party chairman, where he built regional, state and national connections. Former Gov. Bill Richardson appointed him to the Board of Regents at New Mexico Highlands University and New Mexico State University, where Gonzales graduated with a bachelor’s degree in accounting. 

Gonzales ran a clean campaign. However, two political action committees supporting his candidacy tore into his opposition, portraying Bushee as an anti-union politician who was “the wrong choice for Santa Fe’s working families.”

Hat/tip to TowleRoad

Freedom To Marry Summarizes Marriage Equality Victories In 2013

Freedom to Marry, the campaign to win marriage equality nationwide, has summarized the amazing progress in marriage equality that happened in the last year into one animated gif (shown above) and a blog post written by Evan Wolfson: "Top 10 Freedom to Marry Moments in 2013."

10. Anniversaries and Milestones in Massachusetts, Hawaii, and More9. More Republicans Join the Cause8. Majority of U.S. Senate Supports the Freedom to Marry7. Ascendance of Pope Francis and a New Tone on Gay People and Marriage6. President Obama Extols the Freedom to Marry in Inaugural Address5. Freedom to Marry Makes International Gains Around the World4. Record Majorities for Marriage3. Obama Administration Moves Swiftly and Strongly to Implement Federal Respect for Married Couples – Even in Discriminating States2. We Win the Freedom to Marry in a Record 9 More States1. Supreme Court Strikes Down Core of DOMA

Go to the post and read the details behind these headlines.

QUEER QUOTE: Albuquerque Journal Says Leave Marriage Equality Alone

As you may recall, the New Mexico Supreme Court clarified on December 19th that under New Mexico's constitution same-sex couples must be allowed to marry like their opposite-sex counterparts. The court's ruling in Griego v. Oliver claimed that not doing so was not sex discrimination, but it was a violation of the fundamental right to marry and discrimination on the basis of sexual orientation.

The news was somewhat overshadowed by a federal judge striking down Utah's ban on same-sex couples being allowed to marry the very next day but New Mexico becoming the 17th state to have marriage equality is significant.

Soon after the decision went into effect there came rumblings that Republican legislators wanted to overturn the decision by amending the state constitution to ban gay marriage.

Today's Queer Quote is Albuquerque's largest newspaper telling the state's politicians to leave marriage equality alone since the issue has been resolved by the courts:

If legalizing same-sex marriage had been put to New Mexico voters as a constitutional amendment – a route favored by Gov. Susana Martinez, who opposes such unions – it most likely would have passed. And that would have been the best route. A vote of the people circumvents the argument about the role of “activist judges.”

But courts decide controversies that come before them and that’s what they did in this case. The state high court’s ruling, affirming rulings by trial judges in Santa Fe and Albuquerque, balances the interests of gay people who want to marry and the religious interests of those who oppose it. That makes sense in predominantly Catholic New Mexico. Meanwhile, voters who think district judges and Supreme Court justices overstepped the role the courts should play can register their displeasure in the next judicial retention elections. That also is their right.

But when it comes to the Legislature, opponents who have vowed to continue the fight by seeking an amendment to the state constitution to define marriage as being between one man and one woman should start the new year by letting it go.

Their only chance of success is the unlikely scenario of a constitutional amendment clearing the Legislature, winning voter approval and surviving a legal challenge. Gay marriage opponents who continue this fight will succeed only in fanning the flames of hostility and resentment. And then what happens with all the same-sex marriages on the books?

The state Supreme Court has concluded that all people, no matter their sexual orientation, should be treated equally under the law when it comes to the right to marry. It’s time to recognize that and move on.

Nice!

Same-Sex Marriage Now Legal In Utah After Federal Judge Strikes Down Marriage Ban

Well, well, well! While I was incommunicado watching The Hobbit: The Desolation of Smaug this afternoon apparently there was some amazing breaking news. Federal judge Robert Shelby issued a ruling which struck down Utah's voter-passed constitutional amendment banning same-sex marriage and refused to issue a stay of his decision, which means that same-sex couples can now get married in the Beehive state. There is a keen sense of irony that this is occurring in Utah, which is the location of the Mormon Church, one of the most virulent opponents of marriage equality and LGBT rights throughout the country.

The Church of Jesus Christ of Latter-Day Saints issued a statement:

 The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect. This ruling by a district court will work its way through the judicial process. We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman and we are hopeful that this view will be validated by a higher court.

The Governor of Utah, Republican Gary Hebert said:

"I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting Attorney General to determine the best course to defend traditional marriage within the borders of Utah."

The full text of the decision can be accessed here.

Ian Milhiser analyzed the ruling at Think Progress:

Beyond Judge Shelby’s conclusion that marriage is a question of constitutional rights, not one of states’ rights — as he explains, “the Fourteenth Amendment requires that individual rights take precedence over states’ rights where these two interests are in conflict” — Shelby’s opinion appears designed to tear down whatever intellectual infrastructure remains supporting marriage discrimination.

The leading argument advanced by supporters of discrimination in same-sex marriage cases is that marriage is necessarily tied to procreation, so same-sex couples can be excluded because they cannot produce biological offspring. Yet, as Shelby points out, the ability to procreate is not “a defining characteristic of conjugal relationships from a legal and constitutional point of view.” Such an argument does not simply “demean[] the dignity” of same-sex couples, it also degenerates “the many opposite-sex couples who are unable to reproduce or who choose not to have children.” Indeed, under Utah’s argument for maintaining marriage discrimination, “a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate.”

Additionally, opponents of marriage equality who cheered Justice Antonin Scalia’s sharply worded dissent in Lawrence v. Texas — another landmark gay rights opinion — may come to regret Scalia’s words after reading Judge Shelby’s opinion. Scalia wrote in Lawrence that “[t]oday’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Shelby’s opinion proclaims that Scalia was right.

Oh the delicious irony. Will noted homophobe Justice Antonin Scalia disavow his dissent in Lawrence in order to deny a fundamental right to marry that he announced the Supreme Court would be powerless to prevent from being articulated if private sexual relations were removed from governmental regulation? It will be fascinating to see what happens when this decision goes to the Tenth Circuit Court of Appeals to the Supreme Court in the future.

But right now, astonishingly, Utah is the 18th state in the union to have enacted marriage equality, and the first very red state to do so. Presumably, same-sex couples will be able to get civil marriage licenses and get married in Utah (no waiting period!) until a stay is issued by a higher court, which could happen as early as Monday.

Hat/tip to Joe.My.God

New Mexico Sup. Ct. Rules Unanimously In Favor Of Marriage Equality!

As expected, the New Mexico State Supreme Court has ruled in favor of marriage equality, making the Land of Enchantment the 17th state to end marriage discrimination against same-sex couples.

The Albuquerque Journal reports:

The New Mexico Supreme Court on Thursday ruled in favor of same-sex couples, granting them all the same rights of marriage enjoyed by heterosexual couples.

The court’s 31-page opinion states, in part, that: “All rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.”

New Mexico joins 16 other states, the District of Columbia, and several Native American tribes in recognizing same-sex unions.

Justice Edward Chavez, who authored the unanimous opinion, rejected arguments made during an October hearing by opponents of same-sex marriage.

“Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying,” Chavez wrote in his opinion.

However, the ruling also stipulated that religious clergy who do not agree with same-sex marriage are not required to perform marriage ceremonies for gay and lesbian couples.

After eight of the state’s 33 counties began issuing marriage licenses to gay and lesbian couples earlier this year, county officials petitioned the court to provide a state-wide ruling.

The court ruled that county clerks must issue marriage licenses to couples regardless of gender, and that licenses issued to same-sex couples prior to the ruling must be recognized. More than 1,400 same-sex couples have been issued marriage licenses in New Mexico since August.

Woo hoo! It is interesting that the last two State Supreme Court ruling on marriage equality have been unanimous (Griego in New Mexico and Varnum in Iowa).

Hat/tip to Joe.My.God

Missouri To Recognize Marriage Equality For Tax Purposes

Missouri Governor Jay Nixon (D) announced this week that he supports marriage equality as a matter of public policy and issued an executive order that would allow legally married same-sex couples who file taxes in Missouri to do so jointly, despite the existence of a state constitutional amendment passed in 2004 which said that "to be valid and recognized in this state, a marriage shall exist only between a man and a woman."

The St. Louis Post-Dispatch reports

Nixon said he was making the change because state tax law is linked to federal tax law. 

After the U.S. Supreme Court invalidated part of the Defense of Marriage Act in June, the IRS ruled that legally married same-sex couples will be treated as married for federal tax purposes, no matter where they live. 

At a news conference in his Capitol office, Nixon told reporters he will issue an executive order today telling the Missouri Department of Revenue to accept the couples’ joint state returns if they file joint federal returns.

Think Progress explains how the legal situation for same-sex couples has changed since the Supreme Court's decision in United States v. Windsor:

When the Supreme Court overturned the Defense of Marriage Act, it opened up the possibility for same-sex couples to file their federal tax returns jointly for the first time. In the past, such couples living in states that recognized their marriages could file jointly at the state level but had to file separately at the federal level. The situation is now switched, so any couple who legally married in one state but then moved to another that didn’t recognize their union can file jointly for federal taxes, but will still have to file separately for state taxes. Missouri will become the first exception to this. 

As I have been saying, we are running out of blue states to make advances in marriage equality and the next frontier in ending discrimination against LGBT people will be occurring in conservative red states. The only remaining blue states that do not have marriage or civil unions are Virginia, Wisconsin, Michigan, Pennsylvania, Ohio and Florida. It's curious that these are some of the most populous states in the country and currently all of them (except Virginia) have Republican governors but have gubernatorial elections in 2014. Virginia is the location of a high profile federal marriage lawsuit, and there are active lawsuits in many of the other states as well. Blue states which are expected to have enacted marriage equality in the foreseeable future are New Mexico, Oregon, Colorado and Nevada.

NM Religious Extremists Petition SCOTUS To Allow Anti-Gay Discrimination

The high profile case of a New Mexico wedding photographer who refused to take the job when they learned that it involved a same-sex commitment ceremony and was then successfully sued under that state's anti-discrimination law is now before the United States Supreme Court. The case, named Elane Photography v. Willock, is being handled by the notorious heterosexual supremacist organization Alliance Defending Freedom (ADF), who have filed a writ of certiorari before the nation's highest court with a novel idea: the photographer's first amendment rights of free expression are being violated by the New Mexico statute.

SCOTUSblog discusses the case:

On the premise that taking photos is a form of story-telling — recall the old idea about how many words a picture is worth — an Albuquerque studio on Friday asked the Supreme Court to protect its owners from having to send the message that the uniting of same-sex couples in marriage-like ceremonies is acceptable.

The new case of Elane Photography v. Willock does not ask the Court to rule on any right of gays and lesbians to marry, but it does seek a decision on how far a state may go to protect same-sex couples from discrimination in the marketplace.  The New Mexico Supreme Court ruled in August that the studio violated a state anti-discrimination law by turning away a request to take photos of a same-sex commitment ceremony.

As more legislatures — including Congress — pass or at least consider bills to outlaw discrimination against homosexuals, the spread of marriage or civil unions among gays and lesbians is now raising more issues about how those laws apply to such relationships.  The Elane Photography case could help provide an answer.

The owners of the Albuquerque studio — Elaine Huguenin and her husband John Huguenin — told the Court that they “object as a matter of conscience to creating pictures or books that will tell stories or convey messages contrary to their deeply held religious beliefs.” Among their beliefs, they said, is that marriage “is the union of a man and a woman.”

The boundaries of where religious freedom ends and anti-gay discrimination begins is the next frontier in the battle over LGBT equality. This photography case has been a cause célèbre among religious extremists and heterosexual supremacists who oppose marriage equality; they make the claim that allowing marriage equality without an exemption for religious people to not participate in providing services or recognizing marriages that they object to tramples their religious freedom. Funny how they don't make that same claim about interracial marriage now even though there was significant opposition to interracial marriage that was based in religious belief.

Proponents for LGBT equality like myself see this claim for religious exemptions as thinly veiled attempts to exempt religious people from the basic tenets of public accommodations law.

In the three huge legislative victories for LGBT people last week (Illinois, ENDA and Hawaii) the extent of religious exemptions was a key point of debate, and this argument is not going away as religious homophobes realize they are ultimately going to lose the fight to stop marriage equality and LGBT non-discrimination nationwide so they want to limit its effect as much as possible.

We shall be watching this case very carefully to see if the U.S. Supreme Court accepts it for review. It should be noted that the New Mexico Supreme Court ruling being appealed was unanimous in favor of the public accommodations law and other cases where LGBT anti-discrimination and religious belief have all gone in favor of anti-discrimination. However, in cases where LGBT rights and other first amendment fights have been in conflict have generally gone against us (Boy Scouts of America v. Dale and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston).

Hat/tip to Joe.My.God

Illinois House Passes Marriage Equality, Will Become State #15 Soon!

The Illinois House of Representatives narrowly passed a marriage equality bill 61-54 today, basically ensuring that the Land of Lincoln will become the 15th state in the United States to allow same-sex couples to marry legally. The measure, SB 10, had previously passed the State Senate overwhelmingly 34-21 and heads back there today for concurrence with some amendments and then on to Governor Pat Quinn's enthusiastic signature.

The Chicago Tribune reports:

The bill got 61 votes, one more than the bare minimum needed to send the measure back to the Senate for final approval that’s expected later today. Democratic Gov. Pat Quinn has said he would sign the bill into law should it reach his desk.

The House vote followed more than two-and-a-half hours of debate in which supporters said it’s time for Illinois to make marriage equal for all and opponents raised concerns about protecting the institution of marriage and the religious beliefs of those who say marriage should be between a man and woman.

Sponsoring Rep. Greg Harris told colleagues that a series of “proud moments and difficult decisions that have brought honor upon the people and the state of Illinois, and we find ourselves at another one of those moments today.”

The openly gay Democratic lawmaker from Chicago said the state’s civil union law has saddled Illinois with “inequality, unfair burden and harms added layer by layer to people simply because they live in the state of Illinois.”

“To treat all our citizens equally in the eyes of the law, we must change this,” Harris said.

The bill received three yes votes from Republicans and 11 no votes from Democrats. Just last week Greg Harris was picketed by marriage equality supporters for his delay in calling the bill to a vote. However, I'm sure all will be forgiven now that another blue state has entered the ranks of marriage equality.

The real question in my mind is what will be the first red state to have marriage equality?

Marriage Equality Starts In New Jersey; Christie Drops Appeal

As expected, marriage equality reached New Jersey at 12:01am this morning and soon afterwards U.S. Senator-elect Cory Booker officiated his first marriage as Mayor of Newark, the state's largest city.

Interestingly, New Jersey Governor Chris Christie announced a few hours later that he had decided to drop his administration's appeal of the September 26 ruling that is being implemented today to the New Jersey Supreme Court, thus removing any ambiguity about the future status of marriage equality in the Garden State.

Evan Wolfson of Freedom to Marry released a statement making it clear that his organization is not willing to stop at the 14 states (and Washington, DC) that now have marriage equality:

"At long last, the freedom to marry is now permanently law of the land in New Jersey. The marriages of loving, committed couples throughout the Garden State, combined with Governor Christie's withdrawal of his appeal, is joyous news to New Jerseyans, both gay and non-gay. The momentum continues to build nationwide and we are working hard to deliver victories in Hawaii, Illinois and New Mexico yet in 2013."

And Chad Griffin of Human Rights Campaign, the largest LGBT rights group in the country, emailed supporters reminding them of their goal to reach 50 marriage equality states within 5 years of this year's Supreme Court ruling in U.S. v. Windsor and listed the states that they are focused on in the foreseeable future:

• In Hawaii, we've sent three senior field organizers to work with the Hawaii United for Marriage campaign, and we're expecting a vote in the legislature any day now.
• In Illinois, we have invested more than $255,000 in the legislative marriage campaign. Nine HRC organizers are on the ground working to generate constituent contacts and secure a favorable House vote for the marriage equality bill, which has already passed in the Senate.
• In New Mexico, we have hired two field organizers to mobilize support as a marriage equality lawsuit is pending before the State Supreme Court.
• In New Jersey, we have deployed four field organizers and a senior field organizer to partner with the New Jersey United for Marriage campaign following Governor Christie's appeal of a pro-marriage trial court decision and his veto of the marriage equality bill.
• In Oregon, HRC is part of the governing board of the Oregon United for Marriage campaign that seeks to replace the state's existing marriage amendment with full marriage equality. HRC is also funding the campaign's faith director and has deployed a senior field organizer to be part of the campaign.
• In Indiana, HRC is fighting alongside the bipartisan coalition Freedom Indiana to defeat an anti-marriage constitutional amendment.
• In Arizona and Ohio, we helped launch educational campaigns with the aim of repealing and replacing the states' "Defense of Marriage" Amendments at the ballot in 2016.

Only time will tell what will happen next. What do YOU think? Will there be 50 states with marriage equality within 5 years?

I think it is possible, but I would probably give it until 2020. In order to do so one would need a ruling from the United States Supreme Court recognizing that the freedom to marry explicitly includes the right to marry someone of the same-sex. In order for that to happen within the next five years it is likely one needs to reach a majority of states (twenty-six) that have marriage equality as well as a majority of Supreme Court justices (five) that would endorse the concept. That would almost certainly require at least one (if not more) Republican-appointed justices to retire.

What do you think?

New Jersey Poised To Become 14th Marriage Equality State Monday!

More big news out of New Jersey today. Wednesday night Cory Booker made history by becoming only the fourth black man to ever been elected to the Senate (one went on to become our President of the United States!) Today's big news is that New Jersey will become the 14th marriage equality state on Monday because the New Jersey Supreme Court unanimously denied Governor Chris Christie's motion for a stay to delay implementation of a lower court ruling that said the state must start issuing marriage licenses October 21. The New Jersey Supreme Court had earlier decided to hear the appeal of the lower court decision and the current skirmish was over whether the ruling would go into effect prior to its ratification or nullification by the state's highest court. The fact that the Court left the ruling go into effect would seem to signal they will uphold the ruling. And even if they don't there is a pending vote in the New Jersey legislature to override Christie's veto of a marriage equality bill.

The Court allowed marriage equality to begin in New Jersey by saying:

A spokesperson for Governor Christie has issued a statement saying "The Supreme Court has made its determination. While the governor firmly believes that this determination should be made by all the people of the state of New Jersey, he has instructed the Department of Health to cooperate with all municipalities in effectuating the order of the Superior Court under the applicable law."

New Jersey may not even be the last state this year to enact marriage equality. Hawaii has a special session of the legislature starting on Monday October 28th in order to consider a marriage equality bill and Illinois also still has a pending bill which has passed the State Senate and is stalled in the House (and there's a pending lawsuit). The New Mexico State Supreme court will hear oral arguments to determine whether every county has to issue marriage licenses to same-sex couples next Wednesday October 23.

POLL: Majority Support for Marriage Equality in New Mexico

We have been following the marriage equality situation in New Mexico pretty closely. Currently, more than half of the population lives in counties where County Clerks have been issuing marriage licenses to same-sex couples. A new poll shows that marriage equality is a majority position in the Land of Enchantment:

While 51 percent of respondents strongly or somewhat favor allowing gays and lesbians to marry, 42 percent are opposed, according to the poll. The remaining 7 percent didn’t know or refused to answer. 

[...] 

The poll also found that 53 percent would vote in favor of a ballot initiative to allow gays and lesbians to legally marry and 54 percent would oppose amending the state constitution to ban same-sex marriage.

The New Mexico State Supreme Court will hear arguments on October 23 in  a case that should decide the question once an for all about whether same-sex marriage is legal in that state. It can't hurt our chances that the Court would be confident knowing that a ruling in favor of marriage equality would be widely popular.

UPDATE: Judge in PA Stops County From Issuing Marriage Licences

If you recall the marriage equality situation in Pennsylvania when last we blogged about it, there was a single county (Montgomery) that was issuing marriage licenses to same-sex couples because the Register of Wills Bruce Hanes had decided the state marriage law was unconstitutional.

A number of same-sex couples received marriage licenses and got married. The Attorney General of Pennsylvania also believes the Keystone State's marriage law is unconstitutional and refused to defend it.

However Pennsylvania's Republican Governor, Tom Corbett, stepped in to defend it himself in his capacity as the chief executive of the state, hiring a private law firm to do so (at the cost of $400 per hour).

It turns out that yesterday a judge finally ordered Hanes to stop issuing marriage licenses to same sex couples, which he says he has done 146 times. It's not clear what the status of the marriages that were entered into using those licenses. However, typically in this situation, even when the marriage statute is ruled unconstitutional (California) those marriages from improvidently issued licenses are often declared null and void by the Court (California, Oregon and Colorado).

You may recall that a similar thing is happening in New Mexico, but in the other direction. Judges are ordering county clerks to issue marriage licenses and the state Supreme Court has finally stepped in to say it will hear oral arguments in the case in late October.

Queer Quote: Santa Fe County Clerk Requests Ruling From NM Sup Ct

Although she has been ordered to issue marriage licenses to same-sex couples by a state judge, Santa Fe County Clerk Geraldine Salazar today filed a motion, joined by all 33 county clerks in the state of New Mexico, to intervene in a lawsuit filed by the ACLU seeking to win the freedom ti marry for same-sex couples in the Land of Enchantment.

Salazar's explanation for why she took this action to make herself a defendant in a lawsuit is today's Queer Quote:

“We want direction from the New Mexico Supreme Court. I have been ordered by two district courts to issue same-gender marriage licenses and not ordered to change the statutory marriage application to gender neutrality. I want clear judicial authority to do so.”

The ACLU of New Mexico is happy that all 33 County Clerks are a party to their lawsuit, so if they win it will expedite the uniform access to marriage equality statewide. They released a statement saying:

"We believe that the county clerks intervening in our lawsuit puts New Mexico on an expedited path towards a statewide marriage solution which would provide more certainty for the same-sex couples who married in our state. We are hopeful that the Supreme Court will agree with the lower court decision which held that denying marriage to committed, loving same-sex couples is unconstitutional.”

I suspect we'll know sooner rather than later whether this was a good thing or not, but it sure look like it from here.

Hat/tip to Joe.My.God

New Mexico: Now At 6 Marriage Equality Counties (55% Of State's Population)

Progress on marriage equality is happening pretty quickly. On Saturday I blogged about the two counties, Doña Ana and Santa Fe, that were issuing marriage licenses to same-sex couples. Less than a week a later that number has now tripled to six counties.

The Washington Post reports on the current state of marriage equality in New Mexico:

State District Judge Alan Malott on Monday ordered Bernalillo County Clerk Maggie Toulouse Oliver and Santa Fe County Clerk Geraldine Salazar to begin issuing licenses to same-sex couples immediately. The ruling echoed another district judge’s ruling last week that ordered Santa Fe County to begin issuing licenses. 

[...] 

In anticipation of the decision, both county clerks had already begun printing gender-neutral marriage licenses. Last week, the county clerk in Dona Ana County, in southern New Mexico, began issuing marriage licenses to same-sex couples. On Tuesday, clerks in Valencia County and San Miguel County said they, too, would begin issuing licenses. 

Together, the five counties are home to more than 1.1 million of New Mexico’s 2.08 million residents.

The sixth county that is issuing marriage licenses to same-sex couples is Taos County. The question now is how long will it take for a statewide ruling to be made to establish the public policy of New Mexico that marriage equality is the law of the land, making the Land of Enchantment the 14th marriage equality  state in the Union.

Hat/tip to Joe.My.God

NEW MEXICO: Same-Sex Couples Issued Marriage Licenses In 2 Counties

As I predicted earlier this year, New Mexico has become the latest front in the fight for marriage equality. This week, county clerks in Doña Ana County (where Las Cruces is located) and Santa Fe (where the state capitol is located) began issuing marriage licenses to same-sex couples. In Santa Fe, they did so in response to a court order from District Judge Sarah Singleton, while in Las Cruces it happened because the county clerk responded to New Mexico Attorney General Gary King's determination that the state's marriage law is  unconstitutionally discriminating against same-sex couples.

The Washington Post reported the news:

New Mexico law doesn’t explicitly prohibit or authorize same-sex couples to be married. The attorney general’s office has interpreted the law to prohibit gay marriage, but Attorney General Gary King also contends that the law violates constitutional guarantees of equal protection under the law. 

More than a dozen other states do allow same-sex marriage. 

Singleton, in her order, said that “reading a sex or sexual orientation requirement into the laws of New Mexico violates the state constitution, which mandates that ‘equality of rights under law shall not be denied on account of the sex of any person.’” 

The order comes as about 90 same-sex couples have received marriage licenses in southern New Mexico since Wednesday, when the Dona Ana County clerk in Las Cruces decided to start granting them. 

A group of Republican legislators is planning to file a lawsuit to stop the clerk in that county, the second largest in the state.

Recently, the state Supreme Court declined to rule directly on the constitutionality of the state's marriage law but  did endorse expedited lower court review. That's good, because events around marriage equality are coming fast and furious in the Land of Enchantment.

Queer Quote: Brian Brown Worries About New Mexico Getting Marriage Equality

Brian Brown is the President and primary spokesperson for the explicitly heterosexual supremacist organization, the National Organization for Marriage. Mr. Brown has been following developments in New Mexico and realizes that marriage equality is imminent. Unfortunately, his reaction is quite different from mine and is today's Queer Quote:

"The battle for marriage as God designed has come to The Land of Enchantment; and it's your turn to stand in the breach. Every person who believes marriage to be the union of one man and one woman needs to contact Governor Martinez today, urging her and her administration to give their full support to the defense of marriage. As you are probably aware, two men applied for a marriage license in Santa Fe County. A brave County Clerk refused to issue the license because she knew, as you do, that New Mexico's definition of marriage is the union of one man and one woman. As a result, these men have filed a lawsuit seeking to have New Mexico give legal recognition to same sex marriage. And yesterday the Santa Fe Commission voted to support this suit! We need the Governor to intervene because the State’s Attorney General is refusing to do so. In fact, the Attorney General has betrayed his oath of office by urging the Court to overturn New Mexico’s recognition of traditional marriage and legalize same-sex marriage."

New Mexico does not have a statutory or constitutional ban on same-sex marriage. This is why there are multiple petitions to the state Supreme Court to clarify the status of marriage equality in New Mexico.

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

Queer Quote: Chad Griffin Sets Goal For Nationwide Marriage Equality

Chad Griffin, the wunderkind behind the federal lawsuit that resulted in Proposition 8's demise last week, made this promise (or threat?) which I would like to highlight as today's Queer Quote:

"Within five years, we will bring marriage equality to all 50 states in the U.S."

Griffin was the founding board president of the American Foundation for Equal Rights (AFER) who sponsored the Hollingsworth v. Perry case. He is now the president of the Human Rights campaign, the nation's largest LGBT political organization.

Today comes word that activists in multiple states are moving forward to make Griffin's vision a reality.

For example, in New Jersey, the Executive Director of Garden State Equality, Troy Stevenson, has made the audacious claim that marriage equality will happen in that state by the end of the year. To that end, Lambda Legal filed a motion today asking for summary judgment in their lawsuit against the state, citing 2005's landmark Lewis v. Harris decision by the New Jersey Supreme Court and last week's United States v. Windsor decision by the United States Supreme Court. If  that wasn't enough, Democrats in the New Jersey state legislature are gearing up to try and override Republican Governor Chris Christie's veto of a marriage equality bill that passed in 2011.

In New Mexico, which is the only other state besides New Jersey that does not contain a statutory or constitutional ban on marriage equality in the country, the ACLU and NCLR have petitioned the state Supreme Court to answer the question whether same-sex couples can obtain civil marriage licenses and get married in the Land of Enchantment.

There is action in other states as well. Read Chris Geidner's wrap-up for more.

MAP: States That Ban Same-Sex Marriage

Look at this map of states that ban same-sex marriage: it is a sea of blue representing the 31 states that have passed amendments prohibiting state recognition or legalization of marriage. The only states that are not in the North East corner of the country are Washington, Iowa and New Mexico. Two of those states (Washington and Iowa) have marriage equality, and New Mexico doesn't have a clear public policy position (there's no law banning it and there's no law enacting it either).