Gay Marriage Ushered Into New Mexico by Judge

     (CN) – Clerks in two of New Mexico’s most populous counties began issuing same-sex marriage licenses after a state judge ruled that gay marriage was legal.
     Judge Alan Malott ruled Monday that the Bernalillo County and Santa Fe County clerks “shall comply with and shall perform their non-discretionary statutory duty to issue a marriage license upon application from ‘each couple’ otherwise qualified without regard to the couple’s sexual orientation or the gender of its members.”
     Bernalillo County is home to Albuquerque, the state’s largest city.
     “Marriage is a fundamental civil right that should be acknowledged and respected at all levels of government,” Bernalillo County Clerk Maggie Toulouse Oliver said in a statement. “Judge Malott’s ruling … has made it clear that the fundamental assumption of that civil right outweighs other technicalities and concerns.”
     Malott found that prohibitions of same-sex marriage do not exist in the New Mexico statutes, “although the statutory scheme does specifically prohibit marriage between minors without consent of their parents or court order, incestuous marriage, and marriage between those lacking contractual capacity.”
     The ruling states “these statutes do not define or limit the definition of ‘couple’ to a heterosexual pair of contractually capable people nor exclude those of same sex orientation from that term.”
     While Malott found that “the use of both gender neutral and gender specific terms in our laws” may support a finding that New Mexico laws do not support same-sex marriage, and that “it is also arguable that our Territorial Legislature did not even consider same sex marriage when it established the statutory scheme in 1862,” the New Mexico Constitution spoke clearly of “equality of rights under the law.”
     The 32-page ruling notes that New Mexico “considered, and spoke clearly to ensure ‘equality of rights under the law’ in 1972 by adoption of” a section of the New Mexico constitution. That section states: “No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under the law shall not be denied on account of the sex of any person.”
     Court clerks “have a non-discretionary duty to issue a marriage license to ‘each couple’ otherwise qualified upon application for same and no valid excuse for not performing that duty has been asserted,” according to the ruling.
     The clerk in Dona Ana County began issuing same-sex licenses last week on his own accord.
     “After careful review of New Mexico’s laws it is clear that the state’s marriage statutes are gender neutral and do not expressly prohibit Doña Ana County from issuing marriage licenses to same-gender couples,” Dona Ana County Clerk Lynn Ellins said in a statement.
     State Sen. Bill Sharer, a Republican from Farmington, N.M., said it is up to the state Legislature, not the courts to determine the laws.
     “It is inexplicable how a district court just today discovered a new definition of marriage in our laws, when our marriage law has not been changed in over a century,” Sharer said in a statement.

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