County clerk: Gay couple’s marriage case in wrong court

Geraldine Salazar

Santa Fe County Clerk Geraldine Salazar says the same-sex couple asking the New Mexico Supreme Court to force her to issue them a marriage license are going about it the wrong way.

Salazar’s response to Alexander Hanna and Yon Hudson’s petition for a writ of mandamus says the state constitution limits such direct petitions to the Supreme Court to cases against state officers, boards and commissions.

Because Salazar is an elected county officer, they should have started in state District Court, says the response signed by Assistant County Attorney Willie R. Brown.

In addition, the response maintains that Salazar “correctly followed the state’s marriage laws which, viewed in their entirety, clearly apply only to persons of opposite sex, and were enacted without any known sexually discriminatory animus decades before adoption of the state’s Equal Rights Amendment and laws prohibiting employees from discriminating on the basis of sexual orientation.”

Brian Egolf, who is representing Hanna and Hudson, said Salazar initially indicated to his clients, as well as to others, that she favors marriage equality, so he had expected a response more sympathetic to same-sex marriage, like the recent one by state Attorney General Gary King.

“She marches in the pride parade, and we heard from lots of folks that she is in agreement with the goals of bringing marriage equality to New Mexico,” Egolf said. “So we were really surprised that her brief takes a position squarely opposing marriage equality on the merits.”



Santa Fe County Attorney Stephen Ross said Egolf, a Democratic state representative from Santa Fe, and his law partners “kept coming over here, urging us not to file a response. That’s their deal. But after the Supreme Court issued its order [telling Salazar to file a response by Monday], that wasn’t in the cards. … She was basically being accused of something improper.”

The city of Santa Fe has taken the opposite tack by filing an amicus brief in support of Hanna and Hudson’s petition and passing a resolution urging the Supreme Court to rule in favor of same-sex marriage. Santa Fe County Commissioner Liz Stefanics, a former state senator from Santa Fe and the only openly gay commissioner, said she plans to introduce a resolution similar to the City Council's next week.

The state Supreme Court could decline to rule on Hanna and Hudson’s case, dismiss it, send it to District Court or issue the writ as requested. It has yet to set a hearing for oral arguments. Hanna and Hudson initially filed their case in the First Judicial District, then withdrew it so they could directly petition the high court. A group of Republican state legislators from Albuquerque and the east side of New Mexico has asked to file an amicus brief in the case.

A similar case brought on behalf of other same-sex couples by the American Civil Liberties Union has been filed in the 2nd Judicial District in Albuquerque and also in the state Supreme Court.

Contact Tom Sharpe at 986-3080 or tsharpe@sfnewmexican.com.

(12) comments

mark mocha

What tactics are referring to? Asking for equal treatment as any tax paying citizen would? Hiring a lawyer to help them petition the courts? Peacefully demonstrate? Avoid name calling? Provide statistics that show same sex parents have less instances of child abuse? Less instances of infidelity? Are usually more sound financially? Those tactics? The ones called the truth? I was unaware that telling the truth was a tactic. I always thought it was what good citizens do. My bad.

Nena Roberts

Wow. My comment was removed. I proved my point.

Steve Salazar

Is browbeating a county clerk really the way to effect change? No, what really needs to happen is that a couple needs to get denied, they sue, the case gets to the Supreme Court, where the Constitutionality of the law is decided. If the law is Constitutional, you are SOL, if it's not, the law will have to be re-written.

mark mocha

So, the county clerks qualifications for interpreting the law is that she has a BA is sociology and is a licensed real estate broker. Not meaning to "browbeat" the clerk but it would seem to me that there should be more qualifications for a job such as this, for a position where interpreting the law is part of your job description. I have a masters in Psychology, can I have the job? And FYI, sometimes common decency and doing the right thing is in direct opposition to the law at hand.

Steve Salazar

The only qualification required is that you get more votes than the other candidates. She won a popular election, after all.

mark mocha

I learn something new every day.

Khal Spencer

I tend to agree with Mr. Salazar. Rather than putting the Clerk into the crossfire, this needs to go to the courts and be settled once and for all.

Comment deleted.
Tracy Lopez

And who's asking for sympathy?

Comment deleted.
Tracy Lopez

Above the law? And punished? LOL....seriously. Please explain.

I think they should stop paying city, county and state taxes until they have equal treatment and rights just like EVERY heterosexual has, just like I do.

Hanna and Hudson, please don't stop. Take it all the way up and then sue the hell out fo the state, it's worth it!!

The Supreme Court already made it's decision, now GO FOR IT!!

Comment deleted.
mark mocha

The "gay movement?" This is not about some movement. This is about the constitution and about equal rights for all. This is what the 60's was all about. remember.... equal rights for minorities, women..... stuff that is in our constitution but people tend to overlook it when it comes to certain people. We are all equal under the law and should have the same rights as everyone else. Thats what that flag stands for, thats what it represents. So, if she were following the law she would treat that couple the same as every other couple that applies for a license. And sympathies have nothing to do with it. It's time we as a people started living up to what that flag represents, that flag that defines us as a people, that flag that is a beacon of hope to millions around the world ...... and it doesn't represent unequal treatment, locked borders, racial discrimination or any other type of oppression. It represents freedom.

mark mocha

What is with these elected officials and department heads in this state. First the head of Human Services refuses to hand over an audit PAID FOR WITH MY TAX DOLLARS. And so is her salary for that matter. Then the County Clerk refuses to issue a marriage license because according to her it was done incorrectly. Unbelievable. Oh, she's not biased against gays. Right. She has gay friends. Marched in the pride parade. That's like saying "I have black friends". Peoples. You are elected by and paid by the people of this state, not God and certainly not by a private trust fund so DO THE WILL OF THE PEOPLE. Any law student will tell you that Roe v Wade was incorrect, an anomaly. Never should have made the supreme court. It was a state issue BUT it was and still is the will of the people and so it stands .... rightly. So it is with gay marriage. It is the will of the people that all people should be afforded the same rights. So, afford them.

Francisco Carbajal

I think the current Santa Fe County Clerk and the Santa Fe County Attorney's Office are doing an excellent job! In regards to US Supreme Court recent ruling relating to same-sex marriage, the Santa Fe County Commission should stay clear away from proposing any resolution to support it! This issue is too culturally sensitive for Santa Fe County and it is not in the best interests of the citizenary. The fact remains the same-sex marriage issue has no legal clout in Santa Fe County and a proposed resolution to support it by Commission Stephanics will not make a difference in it anyways. Certainly, it will cause more division and separation in our Northern NM communties, including Santa Fe County. In terms of the City of Santa Fe recent decision to pass a non-enforceable resolution supporting this matter, it was a big mistake. The Mayor and the City Attorney do not respresent anybody but themselves. It is all about grandstanding and political movidas that makes it a personal agenda item for both of them and they know it. And in the next Mayor's and City Council election in 2014, let's see what happens with this same-sex marriage stuff? BTW, "it is not the will of the people that all people should be afforded the same rights relating to marriage" in New Mexico either! I do agree that in two larger urban cities in NM, a small fraction of the population do support it; however, in rural NM communities, villages, pueblos,etc., it is not so true. I for one, cannot support a homsexual man telling me he deserves to have the same equal rights as a father, dad, husband, and/or grandfather like me. It ain't going to happen in my life time. Of course, this is my opinion and I owned up to it regardless on what others may say or disagree. Boundaries are made for a reason and maybe it is better for the same-sex marriage advocates to learn not to infringe thier agenda on others in Santa Fe County, including Northern NM.

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