If it ain't broke, don't fix it!

March 19, 2013 1:01 PM

Santa Fe officials are encouraging same-sex couples to apply for marriage licenses, pointing out that the state doesn't need to pass a marriage equality law because New Mexico law already allows same-sex marriage.
posted by KathrynT (28 comments total)

This just goes to show how awesome New Mexico is.

EABOD Arizona.
posted by Renoroc at 1:16 PM on March 19, 2013 [8 favorites]

For a second there I confused AZ and NM and it was incredible.
posted by 2bucksplus at 1:17 PM on March 19, 2013 [2 favorites]

How did New Mexico miss 20+ years of "the gays r coming to ruin our marriages, ZOMG!" to be able to do this? Well done!
posted by munchingzombie at 1:22 PM on March 19, 2013 [3 favorites]

Sadly,

UPDATE 2 (4:15 p.m. Eastern): Chris Johnson of the Washington Blade points out that Santa Fe County Clerk Geraldine Salazar told the Santa Fe New Mexican she will not be able to issue marriage licenses to same-sex couples until the state’s law is clarified:

posted by jepler at 1:33 PM on March 19, 2013 [2 favorites]

Backdated:
New Mexico: First state to recognize gay marriage.
(After this brief clarification from the Santa Fe City Council)

That's pretty awesome. :D
posted by zarq at 1:34 PM on March 19, 2013 [2 favorites]

The NM Legislative session just ended this past weekend. This proposal for gay marriage was shot down, as a similar one was during last year's session.

Here is the article from the New Mexican. With the quote from the county clerk.

Mayor Coss is a progressive mayor, Santa Fe has one of the highest minimum wages in the country. But, he might hit a wall with this one -- New Mexico is home to many conservatives and many religious Catholics as well as progressives.
posted by backwords at 1:41 PM on March 19, 2013 [1 favorite]

UPDATE 2 (4:15 p.m. Eastern): Chris Johnson of the Washington Blade points out that Santa Fe County Clerk Geraldine Salazar told the Santa Fe New Mexican she will not be able to issue marriage licenses to same-sex couples until the state’s law is clarified:

This doesn't seem to make sense from a legal standpoint, to me. I mean the law probably doesn't SPECIFICALLY state that short men can marry tall women but that doesn't mean it requires clarification from the legislature just because some people find it weird.
posted by showbiz_liz at 1:45 PM on March 19, 2013 [6 favorites]

Isn't this old news? I vaguely remember a county clerk in New Mexico marrying people right around the time Gavin Newsom decided he was going to marry people.
posted by hoyland at 1:51 PM on March 19, 2013 [1 favorite]

From the New Mexican article: In 2004, the Sandoval County clerk issued marriage licenses to 64 same-sex couples using the same argument, but the state attorney general ordered her to stop the practice and said the licenses were not valid.
posted by backwords at 1:53 PM on March 19, 2013

In 2004, the Sandoval County clerk issued marriage licenses to 64 same-sex couples using the same argument, but the state attorney general ordered her to stop the practice and said the licenses were not valid.
posted by Going To Maine at 1:53 PM on March 19, 2013

While I'd like it to be true, I'm not so certain that the Santa Fe officials' interpretation is correct.

Here's a link to New Mexico Statutes. Unfortunately, I can't seem to link directly to the relevant section, but you can browse to it using the TOC in the left pane - go to NMSA Chapter 40, Section 1.

The initial definition (Section 40-1-1) appears to be gender-neutral, and nothing for the next several sections suggests otherwise. But when you get to 40-1-18, which has the application form (N.B.: actually written into the law, not just what the state happens to have printed up), there are spaces for "Male Applicant" and "Female Applicant."

Also note: if you want to argue that 40-1-18 is not limiting (perhaps because it specifies a marriage certificate application form, but not the only permissible one), you should also note that the rest of the law is not only gender-neutral, but also number-neutral. Nothing other than 40-1-18 explicitly specifies that a marriage can exist only between two people. So, by the logic of the Santa Fe officials, congratulations to New Mexico on being the first state to permit marriages of three or more people!!
posted by DevilsAdvocate at 2:01 PM on March 19, 2013 [7 favorites]

This happened a couple of years ago, too, and was deemed illegal. No story here, unfortunately.
posted by roomthreeseventeen at 2:19 PM on March 19, 2013

For a second there I confused AZ and NM and it was incredible.

This reminds me of the time that my girlfriend and I were sitting at El Guero Canelo in Tuscon (try the Sonoran hot dogs!) at 8:30 in the evening on a road trip, debating whether we should push further onward that night. On the one hand, we were tired, having started the day in Santa Barbara; on the other hand, we weren't that tired.

We got out of town because we realized that we didn't want to spend any more money in Arizona than we had to. I-10 through southeastern Arizona is dark and has shitty radio. But we pushed onward and collapsed, dead tired, in the first town in New Mexico.
posted by madcaptenor at 2:32 PM on March 19, 2013 [2 favorites]

This same general theory led Multnomah Co., Oregon (Portland) to issue marriage licenses to same-sex couples. It triggered the campaign for ballot measure 36, which closed that "loophole" with a constitutional amendment in 2004.

I think the commissioners did the right thing, but I also think they inadvertently led social conservatives to mobilize in a way they would not otherwise have been mobilized.
posted by mph at 3:39 PM on March 19, 2013

You bring up a good point, mph. But we are in a much different place now. Those commissioners largely lost reelection after that move and we now have an amendment to our contrition enshrining discrimination. That was 2006 in the People's Republic of Portland. This year we are also begining the push to overturn that amendment and the last commissioner race support for marriage equality was an issue both candidates were trying to be more supportive than the other. They also happened to both be Black before the president came out in support of that issue.

So much has changed. Sure, gay hating fascists will always exist and be motivated by our very existence. Gay marriage wasn't even conceived as a possibility when congress passed DOMA. There will be a backlash. But the odds of it having negative consequences are dwarfed by what they were in 2006.
posted by munchingzombie at 3:56 PM on March 19, 2013 [1 favorite]

There's actually a pretty good Wikipedia page on recognition of same-sex unions in New Mexico, noting the 2004 Sandoval county clerk's actions, and the sad history of state legislation to specifically permit same-sex marriages (summary: it has come up every year since at least 2007, and has never passed both the state House and Senate, and sometimes the bills die due to inaction). This year was no different, and there was even a counter-bill, to specifically deny same-sex couples the right to marriage. On the up side, that didn't pass, either.

New Mexico is no shining beacon of hope. Santa Fe and Albuquerque are progressive areas, in an otherwise largely rural and conservative state, but because these anda few similar metropolises have most of the state's population, the state broadly appears to be more liberal.
posted by filthy light thief at 5:41 PM on March 19, 2013 [1 favorite]

Didn't essentially this happen in San Francisco in 2004 as well, leading to Prop. 8?

Gay marriage wasn't even conceived as a possibility when congress passed DOMA

Wat? DOMA was passed in response to gay marriage. Either sporadic recognition of marriages as in NM and California, or situations like in Hawai'i or Oregon where the courts were ruling in its favor, so the state rushed through a constitutional amendment. DOMA was passed so that any one state's failure to pass such an amendment wouldn't cause the rest of the nation's straight marriages to be magically destroyed by teh gays.
posted by hattifattener at 11:01 PM on March 19, 2013

So, by the logic of the Santa Fe officials, congratulations to New Mexico on being the first state to permit marriages of three or more people!!

Or, for that matter, permitting marriage of a single person. Narcissists, New Mexico welcomes you!

(Come to think of it, what happens if you create a marriage containing zero people? /programmer )
posted by hattifattener at 11:03 PM on March 19, 2013

Come to think of it, what happens if you create a marriage containing zero people? /programmer

If it is dissolved the court segfaults on division of assets.
posted by jaduncan at 1:23 AM on March 20, 2013 [7 favorites]

I'm not sure how to go about actually doing it, but I'm in ABQ and am ordained, so if this actually works I'd be happy to marry any interested mefites. Or non-mefites. Whatever.
posted by NoraReed at 1:47 AM on March 20, 2013 [1 favorite]

backwords: "From the New Mexican article: In 2004, the Sandoval County clerk issued marriage licenses to 64 same-sex couples using the same argument, but the state attorney general ordered her to stop the practice and said the licenses were not valid."

Can the Attorney General make such demands and declarations? I assume the Attorney General isn't in a supervisory position over the county clerks. He shouldn't be able to order the cessation of licenses. Also he is a not a judge and therefor can't rule that the licenses break the law. Correct?
posted by 2manyusernames at 5:53 AM on March 20, 2013

Didn't essentially this happen in San Francisco in 2004 as well, leading to Prop. 8?

Strictly speaking, yes, but Prop 8 was four years later and same-sex marriage was decidedly legal when Prop 8 passed. Gavin Newsom, who was mayor of San Francisco at the time, decided 'Fuck it, I'm going to marry some people.' (It's possible that this was a long-considered decision and I'm totally misrepresenting what happened there. I've always assumed it was a kind of stunt-y way for Gavin Newsom to get his name in the paper.) This lasted for like a month and then the courts issued an injunction stopping them from issuing marriage licenses. The marriages that existed where then invalidated. At this point, a whole slew of lawsuits got filed, which were consolidated and wound their way through the courts. In May 2008, the state supreme court ruled than Prop 22 (banning same-sex marriage) and the marriage statute were unconstitutional and that marriages would start a month later. Prop 8 actually basically duplicates Prop 22 and, while I can't figure out when they started collecting signatures, is pretty clearly a response to the fact the writing was on the wall in the courts--their signatures were approved in early June, before marriages actually started.
posted by hoyland at 5:55 AM on March 20, 2013

I just can't comprehend why some people are so adamantly against 2 people getting married just because they are the same gender. Who cares. More importantly Why care? What is really bullshit is that the arguments against same-sex marriage was used against interracial marriages. Not that the homophobic bigots appreciate hearing that.
posted by 2manyusernames at 5:58 AM on March 20, 2013

Sadly, homophobic bigots have held the majority (of positions of power) for some while now, though that's clearly changing in some locations.
posted by filthy light thief at 7:04 AM on March 20, 2013

situations like in Hawai'i or Oregon where the courts were ruling in its favor

Oregon's backlash measure 36 did not happen because courts ruled anything. As previously noted: In Multnomah County, a majority of the commissioners decided same-sex marriages were legal because of the ambiguity in Oregon's constitutional language then instructed county offices to act accordingly. There's a bit more background here:

Though it was a majority of the commissioners, though I think they were doing what they thought was right (and what I think *is* right), and though when I learned what was going on thought it was a remarkable moment, they chose a really stupid way to go about doing what they did: No public hearings, internal discussion only, and they cut one of their more conservative fellow commissioners out of the internal discussion altogether, leaving him to learn of their decision after it was made and their decision had gone into effect.

munchingzombie has made the point that the overall state of the culture is markedly different from what it was like nine years ago, and I'm inclined to agree with that. All the same, Oregon got Measure 36 not because of anything happening in the courts, but rather because some county commissioners decided to move ahead under a shaky legal theory, knowing full well that they would antagonize a substantial number of their own constituents and surely knowing what the reaction would be like practically everywhere else in the state, which is to Portlandia as Deadwood is to Mayberry.

Personally, I hate the idea that same-sex marriage even requires discussion. I'm one of those people who largely identifies with the notion of inalienable rights. I think it's embarrassing to us as a culture that we're discussing same-sex marriage as "giving" people rights, because I believe on a gut level that nobody can _give_ somebody else something that's _inalienable_. At that point, it's not so fucking inalienable after all, now is it? What's given can be taken away, which makes it a privilege. Our understanding of those inalienable rights changes, though, so we'll have to have these discussions and periodically re-enumerate them, which is how I wish we'd frame this particular discussion.

I hope very soon we'll collectively agree that choosing to enter into a contract with another person (or people) in their legal majority isn't a privilege, and that it's a right that grows out of our ownership of our own bodies. Further, I have long thought it's wrong that the state involves itself in a sacrament at all, or that a few of the institutions practicing those sacraments have been given the de facto right to deny consenting adults participation in a contract of their choosing because the state has allowed this woeful conflation of the sacred and civil to continue.

But as much as I think having to wage this ongoing fight to take the bigotry out of our understanding of marriage is a moral embarrassment, I think there are better and worse ways to go about it.

I don't think anyone does themselves any favors pretending what happened in Multnomah County was a particularly democratic moment, or that there was some general legal movement afoot that measure 36's proponents were trying to thwart. As much as I think they're wrong and on the wrong side of history, they reacted predictably. Any time you premise some action on a loophole and choose to disregard the broader cultural context in which that loophole is situated, you risk there being widespread support for the closing of that loophole. That's a lesson my nine-year-old has largely learned at this point, and it's a lesson the entire state of Oregon had to learn rather painfully.

As sanguine as munchingzombie is about how much things have changed in nine years, I'm deeply uncomfortable with this sort of "well, the constitution didn't _specify_" line of reasoning, especially when it's carried out at the lowest levels of government, where it has to run a gauntlet even to survive at the state level, and where it's practically guaranteed to mobilize the wrong people. It probably _feels_ to the people making the decision to exploit the loophole like they're taking the initiative, but what they're really doing is erecting a very tottery pile legal reasoning and daring people who hate them to come knock it down. Especially in states like Oregon, where spinning up ballot measure campaigns and living off the proceeds is a cottage industry for a particularly scummy sort of political operator.
posted by mph at 9:23 AM on March 20, 2013

Or, for that matter, permitting marriage of a single person. Narcissists, New Mexico welcomes you!

(Come to think of it, what happens if you create a marriage containing zero people? /programmer )

Alas, no, 40-1-1 defines marriage as "a civil contract." As I understand it, a contract requires at least two parties, so one- or zero-person marriages are still out. My description of the law (aside from 40-1-18) as "number-neutral" was not accurate; I meant to express that it was neutral as to the number of parties as long as that number was at least two.

OTOH, I see nothing in there limiting marriage to natural persons (i.e., what non-lawyers call human beings), so corporations can enter into marriages too. 40-1-1 doesn't even refer to "persons" at all, merely "contracting parties," so we don't even have to quibble about corporate personhood, as long as you accept that corporations can be parties to contracts.
posted by DevilsAdvocate at 1:57 PM on March 20, 2013

Alas, no, 40-1-1 defines marriage as "a civil contract." As I understand it, a contract requires at least two parties

Curses! Foiled once again by a reasonable law.
posted by hattifattener at 10:46 PM on March 21, 2013 [1 favorite]

I don't think any gay couples were actually married, but a lawsuit has been filed by the ACLU:

Santa Fe Mayor David Coss publically encouraged county clerks this week to issue such licenses and said current law allows it.

But clerks in Curry, Doña Ana and Santa Fe counties said state law doesn’t let them issue same-sex marriage licenses and they won’t do so without an opinion from state Attorney General Gary King.

Phil Sisneros, a spokesman for King, said the attorney general has not seen the lawsuit and couldn’t comment.

State Rep. Bill McCamley, D-Las Cruces, has asked King to issue on opinion on the matter.

“We will be working as expeditiously as possible to formulate a response” to the request, Sisneros said.

The lawsuit was the latest in the long fight for same-sex marriage in one of the most Catholic states in the nation.

More information from ACLU, including news on civil unions in Colorado.
posted by filthy light thief at 8:27 AM on March 22, 2013