July 23, 2013 at 4:53 pm EDT | by Chris Johnson
New Mexico AG won’t defend state marriage law
Gary King, New Mexico, gay news, Washington Blade

New Mexico Attorney General Gary King won’t defend state law against a lawsuit marriage equality (Photo public domain)

The attorney general of New Mexico has become the latest chief legal authority in a state to declare he won’t defend its marriage law in court.

In a 29-page filing on Tuesday, Attorney General Gary King said New Mexico’s marriage law is unconstitutional because the state constitution’s guarantee of equal protection to citizens demands same-sex couples “be permitted to enjoy the benefits of marriage.”

“There is no doubt that Article II [Section] 18 of the New Mexico Constitution requires the state to treat equally any of its citizens seeking legal recognition of their marriage, and that any statutory scheme interfering with that guarantee is flatly unconstitutional,” King said.

King issued the opinion in the case of Hanna v. Salazar, a state lawsuit that the National Center for Lesbian Rights and the American Civil Liberties Union of New Mexico filed on behalf of Alexander Hanna and Yon Hudson, a Santa Fe couple seeking marriage rights.

Taking a line from the Obama administration’s views on the Defense of Marriage Act, King argues that same-sex couples should be permitted to marry in New Mexico because the marriage law should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional. The opinion maintains gay people are a suspect class based on their history of discrimination and their political powerlessness.

King, who’s expected to run for governor, is the latest in a series of state attorneys general who have elected not to defend a state’s marriage law on the basis that it prohibits same-sex couples from marrying. Others are California Attorney General Kamala Harris and Illinois Attorney General Lisa Madigan. Most recently, Pennsylvania Attorney General Kathleen Kane said she won’t defend her state’s marriage law against a lawsuit filed by American Civil Liberties Union.

Chris Stoll, a staff attorney for the National Center for Lesbian Rights, praised King for joining other attorneys general in deciding not to defend a law prohibiting same-sex couples from marrying.

“It’s great to see Attorney General King join many state officials around the country who have decided that excluding same-sex couples from marriage is indefensible under the constitution,” Stoll said. “These laws serve only to harm same-sex couples and demean their families and children while helping no one.”

The office of New Mexico Gov. Susana Martinez, a Republican who opposes same-sex marriage, didn’t respond to multiple requests from the Washington Blade to comment on King’s position.

But King’s opinion goes further than just determining that the state’s marriage law is unconstitutional. The filing also rejects an argument that same-sex marriage is already legal in New Mexico because the marriage law is gender neutral and doesn’t explicitly ban same-sex marriage.

King says the marriage law currently doesn’t allow same-sex marriage because the New Mexico’s statutory scheme uses both gender-specific and non-gender specific terms and because other states that had similar statutes determined gay couples can’t marry.

“State courts in New York, New Jersey, Massachusetts and Minnesota have considered analogous statutory schemes and concluded a mix of gender-specific and gender-neutral terminology does not convey the right for same sex couples to marry,” King writes.

The position that same-sex marriage is already legal in New Mexico under current law was a view put forward by Santa Fe officials, including the city’s mayor, David Coss, as part of a resolution approved in March.

Further, the attorney general rejects an argument that the New Mexico Supreme Court should issue a writ of mandamus so that plaintiffs in the case can receive a marriage license before the lawsuit ends. The couple had a filed a petition for mandamus as part of the relief.

“Issuing a writ of mandamus would to Respondent would thus represent an expansion of the jurisdiction conferred by Article VI [Section 3] and presents the very real threat of overloading the court’s docket with mandamus actions concerning any dispute a party has with any local and county official: county tax assessment protests, local zoning disputes, and any other dispute concerning only county or local officials would all be fair game,” King writes.

The opinion comes on the heels of a request from NCLR and ACLU for the New Mexico Supreme Court to issue a different writ of mandamus and take up the case so that it doesn’t have to proceed through lower courts. Stoll said that petition before the court is still pending.

“It asks the court to hold that the New Mexico Constitution requires the state to permit same-sex couples to marry, and also to respect the marriages of those married in other states,” Stoll said. “That petition remains pending alongside the one the attorney responded to yesterday.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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