NM Attorney General Not Defending Gay Marriage Ban

New Mexico Attorney General Gary King told the state's highest court on Monday that a prohibition on same-sex marriage is unconstitutional.

In written arguments filed with the court, King said the justices should invalidate the state's ban on gay marriage if they agree to resolve the issue in a lawsuit filed by two Santa Fe men who were denied a marriage license.

King, a Democrat who plans to run for governor next year against Republican Gov. Susana Martinez, said New Mexico law effectively doesn't allow gay marriages although there's no statutory provision that specifically prohibits, or authorizes, gay couples to be married.

"New Mexico's guarantee of equal protection to its citizens demands that same-sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens," King said in the filing.

The five-member court had asked King's office to respond to the lawsuit. No hearing has been scheduled in the case so far, and it's uncertain whether the Supreme Court will issue a decision resolving the same-sex marriage dispute.

The lawsuit was filed directly with the justices to try to get a speedy decision. However, the court could decide that the case should be handled differently and has to work its way through the legal system as an appeal from a lower court ruling.

The lawsuit asks the court to order Santa Fe County Clerk Geraldine Salazar to issue the two men - Alexander Hanna and Von Hudson - a marriage license.

Despite urging the justices to strike down a gay marriage prohibition, King also said in his filing that the lawsuit wasn't properly before the high court and, therefore, the justices should deny the men's request to order the Santa Fe County clerk to issue them a marriage license. King and a lawyer for the county clerk argued that the Supreme Court doesn't have the power to issue such an order involving a county official - only state officers, boards and commissions.

King said if the court granted the request by the Santa Fe couple it would set a precedent that could overload the justices with requests for similar orders "concerning any dispute a party has with any local or county official," such as county tax assessment protests and local zoning disputes.

King's office last month issued a nonbinding legal analysis that said New Mexico doesn't allow same-sex marriages but that the law was vulnerable to a constitutional challenge.

The lawsuit contends that denying marriage licenses to same-sex couples violates the New Mexico Constitution, including its Equal Rights Amendment prohibiting gender-based discrimination and provisions that guarantee due process and equal protection under the law.

Rep. Brian Egolf, a Santa Fe Democrat and one of the lawyers who brought the lawsuit, said his clients agree with the attorney general that the same-sex marriage prohibition should be struck down.

"They believe that this is the ultimate issue in the case and hope that Supreme Court will not allow an unconstitutional statute to stay on the books," said Egolf, who unsuccessfully pushed a proposed constitutional amendment in this year's Legislature to legalize gay marriage.

He said the "Supreme Court has the power to decide this issue once and for all, and that doing so will resolve a matter of great public importance."

After the Santa Fe men brought their case, the American Civil Liberties Union and others filed a similar lawsuit with the Supreme Court on behalf of six same-sex couples. That case also asks the justices to decide whether New Mexico recognizes same-sex marriages from other states.