Santa Fe city leaders say they see no legal reason same-sex couples can’t get married here — even though county clerks and some state officials disagree.
Mayor David Coss and City Councilor Patti Bushee held a news conference Tuesday to announce that they will ask the rest of the City Council to support a resolution urging county clerks across the state to immediately begin issuing marriage licenses for gay couples under current state laws.
Although the resolution would have no force of law, Coss said, “It’s time to push this issue. I’ve worked on immigrant rights, labor rights and human rights, and on the rights of same-sex couples. I’ve seen the struggle in the Legislature. I’ve seen the hopes rise and the hopes be dashed.”
Santa Fe County Clerk Geraldine Salazar, who took office this year, said in an interview Tuesday that she has no intention of issuing same-sex marriage licences unless there’s a change in state law. She learned about the city news conference Tuesday morning, along with news reporters, but didn’t attend the announcement.
“I would love to be able to issue marriage licenses [to same-sex couples], but under the current law, I feel I’m not free and clear to do so,” she said. “The Legislature creates the laws and the judges interpret the laws, and I, as a county clerk, do not create or interpret laws. And I feel that my oath of office does not allow me to act counter to the laws of New Mexico.”
Although the state Legislature recently left town without acting on a proposed constitutional amendment to legalize gay marriage, Coss said he wants the same rights for all his children, including a daughter who is gay.
“As a dad, I’d just like to walk her down the aisle some day, and I will never get to do that if we don’t move on these issues in Santa Fe,” he said. “Santa Fe is ready. New Mexico is ready, I know. Our country is ready to move on this.”
The resolution is based partly on an opinion from the City Attorney’s Office that says, “New Mexico’s statutory definition of marriage is gender-neutral. Since New Mexico does not define marriage as between a man and a woman, and since New Mexico does not prohibit same-sex marriage, same-sex marriage is permitted in New Mexico.”
However, the official marriage contract in New Mexico is recorded by the county clerk, and both Coss and Bushee acknowledge that the city is likely to find itself in a fight.
“I think you are going to see this appear before the New Mexico Supreme Court,” said Bushee, the longest serving member of the City Council and its only openly gay member. “It’s the forefront of civil rights. We are the last group that is allowed to legally be discriminated against.”
On Feb. 20, 2004, the Sandoval County clerk issued marriage licenses to 64 same-sex couples, but the state attorney general at the time, Patricia Madrid, ordered the clerk to stop the practice and said the licenses were not valid. First Judicial District Attorney Angela “Spence” Pacheco and her partner were among those who received licenses that day.
A 2011 opinion by the state attorney general, however, declared that valid same-sex marriages from other states were valid in New Mexico.
Attorney General Gary King is out of the country and was unavailable for comment Tuesday, but his spokesman, Phil Sisneros, said the office won’t issue an opinion on the matter unless it receives a formal request from a state official. Asked if King would order clerks to stop issuing licenses to same-sex couples if they began the practice, Sisneros said, “I don’t know the answer to that question. It would have to be weighed and considered.”
Among those in attendance at Tuesday’s news conference were a handful of gay city workers. As city Attorney Geno Zamora wrapped up his remarks and looked out over the crowd, his voice broke.
“The law supports this today,” he said. “Same-sex marriage is legal in New Mexico. It’s legal for our brothers and sisters, for our parents, for our nephews and nieces and for our friends.”
He added later, “This issue touches every family and every friendship, every person you work with. Equality means equality for everybody.”
City Finance Department Director Mel Morgan said he and his partner of 26 years have entered into a number of legal agreements in an attempt to secure their mutual assets and rights regarding decisions about health care and other issues. But if they could get legally married, they would do so right away.
“I’m overjoyed,” said Morgan, pausing to slip a finger under his glasses as he spoke to a reporter after the news conference. “I thank Mayor Coss immensely because it is very emotional for me, too — to be thought of as equal is just so important to me.”
Bushee, who arrived at the event holding the hand of her partner, Marisa Again, had announced last week a series of proposed city code amendments on gay rights. One proposal would codify a practice already in place that allows domestic partner insurance coverage for city employees and their families; another would require any business on contract with the city to provide those benefits to its workers; a third would create a Human Rights Commission for the city, she said.
Councilors Chris Calvert, Carmichael Dominguez and Peter Ives said Tuesday that they would vote for the resolution, meaning the measure has support of a majority of the governing body.
Ives, a parishioner at the Cathedral Basilica of St. Francis of Assisi, said the question was complicated. “It is a struggle of conscience always when the dictates of one’s church seem to conflict with the dictates of civil society,” he said. “Those are difficult questions. I support the church in its position, but I too support what I think makes sense in civil society, which is nondiscrimination.”
Councilor Chris Rivera said late Tuesday, however, that he’s inclined not to vote for the resolution.
“I think this is beyond the scope of our work, really,” he said. “I was elected, I think, to deal with city issues. This is a state and federal issue. I’d like to see us do what some other states have done and take it to a referendum, take it to the voters.”
Two decades worth of legislative efforts to clarify the same-sex marriage issue have resulted in no action by state lawmakers. This year, a bill proposed by Rep. Brian Egolf, D-Santa Fe, would have called for a general-election ballot question on making marriage a constitutional right. Bills to narrow the definition of marriage to one man and one woman have also failed in previous sessions.
“If you wait for the New Mexico Legislature, you might be waiting a long time,” Coss said. “We have waited long enough.”
Coss said he realizes the city can’t force Salazar or any other county clerk to issue licenses, but if they don’t, he said, there are groups ready to take them to court. He didn’t specify which organizations he meant.
The American Civil Liberties Union of New Mexico said in a statement that it concurs with the opinion of the city attorney and called on the courts for guidance, but Director Peter Simonson stopped short of saying whether the group would file litigation soon.
“A legal case is one of the ways to clarify that same-sex couples do indeed have the right to marry under the New Mexico Constitution,” said Simonson, “and the ACLU of New Mexico is of course considering this approach.”
Bushee seemed full of hope about the effect of the proposal.
“We all love weddings,” she said. “Let’s have more of them.”
Contact Julie Ann Grimm at 986-3017 or email@example.com. Follow her on Twitter @julieanngrimm.