August 27, 2013 | by Chris Johnson
Judge brings marriage equality to New Mexico’s largest county
A judge in New Mexico had issued a writ of mandamus bringing marriage equality to the state's largest county.

A judge in New Mexico had issued a writ of mandamus bringing marriage equality to the state’s largest county.

A state district judge in New Mexico issued a ruling on Monday instituting marriage equality in the Land of Enchantment’s largest county, bringing the totaling number of counties with same-sex marriage in New Mexico to three.

Along with a 25-page decision, Judge Alan Malott issued a writ of mandamus requiring clerks in Bernalillo and Santa Fe counties to distribute marriage licenses to gay couples.

“Immediately upon receipt of the Writ, Defendants Oliver and Salazar, as the County Clerks of Bernalillo and Santa Fe County, New Mexico, respectively, 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,” Malott writes in the order.

In a statement on her website, Bernalillo County Clerk Maggie Toulouse Oliver announced her office will comply with an order and was set to begin issuing marriage licenses to gay couples starting Tuesday at 8 a.m.

“I’m very happy and proud to finally be issuing marriage licenses to same sex couples in Bernalillo County,” Toulouse Oliver said. “Furthermore, I am beyond relieved to have some judicial guidance in this matter that immediately resolves the conflict that existed between state law and our state constitution. Marriage is a fundamental civil right that should be acknowledged and respected at all levels of government. Judge Malott’s ruling today has made it clear that the fundamental assumption of that civil right outweighs other technicalities and concerns.”

The decision means Bernalillo County will join Santa Fe, where County Clerk Geraldine Salazar had already begun issuing marriage licenses to gay couples on her accord, as well as Dona Ana County, where the clerk had done the same, in having marriage equality.

Notably, the judge comes to the same conclusion as a resolution passed by Santa Fe City Council that proposed by Mayor David Coss: marriage equality is available under current law in New Mexico because of the gender-neutral construction of the law.

Mallot writes in his order that the state law governing marriage doesn’t “define or limit the definition of ‘couple’ to a heterosexual pair of contractually capable people nor those of same-sex orientation from that term.”

Although he acknowledges others may construe the law to prohibit same-sex marriage, Mallot writes that equal prohibition under the state constitution makes such a prohibition unconstitutional.

Additionally, the judge cites the U.S. Supreme Court’s decision against the Defense of Marriage Act as legal precedent among other cases in his reasoning to bring same-sex marriage to Bernalillo County.

“Gay and lesbian citizens of New Mexico have endured a long history of discrimination,” the order states. “Denial of the right to marry continues this unfortunate, intolerable pattern and establishes irreparable injury on Plaintiff’s part.”

The lawsuit was brought to the judge by the American Civil Liberties Union, the National Center for Lesbian Rights, the ACLU of New Mexico and local attorneys on behalf of six gay couples.

Kate Kendell, executive director of the National Center for Lesbian Rights, called the decision a “powerful reminder” of the national momentum in favor of marriage equality.

“We are joyful for our client couples and for every same-sex couple in New Mexico,” Kendell said. “The freedom to marry is about love, commitment, family and security. These are universal values and they are center stage today.”

Among the plaintiffs in the lawsuit are Jen Roper and Angelique Neuman, who have been together for over 21 years. Late last year, Roper was diagnosed with an aggressive brain tumor and was told she had 18 months to live. Unwilling to wait for marriage equality to come to New Mexico at a later date, the couple filed an emergency appeal.

After the Santa Fe County clerk began issuing marriage licenses on her own accord, the couple obtained a marriage license on Friday and married at a cancer center during a break from a chemotherapy infusion.

Attorney General Gary King has already issued an opinion affirming that New Mexico law does prohibit same-sex marriage, but also that this prohibition is unconstitutional and he wouldn’t defend the law in court. King has said he wouldn’t stop counties from distributing marriage licenses to same-sex couples.

Republican state lawmakers, notably State Sen. William Sharer, have said they’ll file their own lawsuit to appeal the decisions and prevent same-sex marriages from occurring.

“Homosexual couples, by their very existence, self-identify as not having the procreative value that is one of the vital components of marriage,” Sharer writes on his website.

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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