Supreme Court can end obscure state marriage statues

— The Santa Fe New Mexican

The New Mexico Supreme Court has a thorny case before it as the great national debate about marriage equality comes to New Mexico.

The court is being asked to require county clerks across New Mexico to issue marriage licenses to same-gender couples. Many argue that because New Mexico’s statutes don’t expressly forbid gay couples from marrying, it should be non-discretionary to issue licenses to two people who want to marry and who are not expressly forbidden from the action.

Two men are suing Santa Fe County Clerk Geraldine Salazar for denying them a marriage license, a case that was filed directly before the Supreme Court in an unusual legal maneuver.

Attorney General Gary King, weighing in on the case, makes it clear that he believes the state Constitutional requirement demanding equal protection for all citizens of New Mexico trumps state statutes about marriage. (Although he does not hold that state laws allow same-sex marriage).

The state constitution — we agree with King — does overrule a myriad of state statutes, some referring to husband and wife, others referring to parties without mention of gender.

Despite making that strong case in the brief filed at the request of the Supreme Court, though, King does not want the high court to step in now. In law, little is straightforward.

The state constitution, it turns out, describes the Supreme Court as having original jurisdiction over state officers, boards and commissions. A county clerk is not a state officer under New Mexico law.

The better remedy, King says, is for the Supreme Court to reject hearing the case and let it be filed in district court. Under that scenario, the Supreme Court would decide the bigger, Constitutional question only if the losing party appeals.

In deciding whether to take this case now, we believe the Supreme Court should consider carefully the phrase “great public importance.” That phrase is the wiggle room that allows the Supreme Court to hear cases that otherwise should start in district court.

When an issue is of “great public importance,” precedent can allow the Supreme Court to hear a case without delay.

There is urgency demanding a decision now. States across the country are finding ways to make same-sex marriage legal. New Mexico, with its balance of liberals and conservatives in the Legislature, has never managed to pass laws either approving such marriages or outlawing them.

We have little hope for a legislative solution. With the U.S. Supreme Court deciding earlier this summer that federal law will not discriminate against same-sex marriage in states where those unions are recognized, it’s more important than ever to help New Mexico couples access federal benefits and protections under law.

The issue is further complicated because Attorney General King (rightly, in our opinion) believes that same-sex couples who can marry elsewhere should have those marriages recognized in New Mexico.

That leaves us with a situation where New Mexicans in long-term, same-sex relationships lack the benefits and rights of marriage enjoyed by their straight married neighbors or their gay neighbors who went to Massachusetts to be married. Unequal and confusing, all the way around.

Only a Supreme Court decision can end this confusion in a timely fashion.