WASHINGTON — A week before the U.S. Supreme Court hears two cases about the legal rights of same-sex couples, the ambiguity of New Mexico law on the issue has again come to the fore as Santa Fe officials Tuesday issued an opinion concluding that "[s]ame-sex marriage is legal in New Mexico."
The opinion is unlikely to have any practical effect, however, because the issuance of marriage licenses in New Mexico is handled by county clerks — who receive legal advice from county lawyers. Currently, the state has no law that either allows or bans same-sex couples from marrying.
Geraldine Salazar, the Santa Fe County clerk, told BuzzFeed that she personally supports allowing same-sex couples to marry but does not believe she has the authority to issue such licenses at this time.
"He's the city attorney. I have a county attorney who I seek legal counsel from. In addition to that, the city attorney is not the attorney general. I, as a county clerk, do not have the authority in my eyes and in my interpretation and in my counsel. In my mindful process of this whole thing, I don't have the authority — and why should I do it for a few hours when really we should have solid laws benefiting all citizens of the state of New Mexico?" she noted.
As for New Mexico's attorney general, Gary King, his spokesman said Tuesday that he has not yet announced any public view on the question.
"AG King has not had an opportunity to weigh-in on the specific question of whether same sex marriages are legal under New Mexico law. It is likely, however, that we will soon receive a request for a formal Opinion on the issue," King's communications director, Phil Sisneros, told BuzzFeed Tuesday afternoon. Sisneros added that the city attorney's opinion "does not carry the force of law, although it is obviously what the city's official legal position is on the issue."
This issue is not new to New Mexico. In making her decision not to issue same-sex couples licenses at this time, Salazar said, "I'm relying on the last opinion of the former attorney general because several years ago in Sandoval County, in New Mexico, we had a county clerk who was issuing marriage licenses."
Sandoval County's clerk at the time, Victoria Dunlap, began issuing marriage licenses to same-sex couples on February 20, 2004, but then-Attorney General Patricia Madrid ordered Dunlap to stop before the end of the day. In all, 64 couples — referred to as the "Sandoval 64" — received marriage licenses that day.
Because a lawsuit filed challenging Dunlap's authority to issue the licenses was dropped when Dunlap left office, Salazar said that "to this day it is ambiguous and there's still questions about, 'are they legal or not,' within the state of New Mexico." She added that, as a result, "All the clerks at that time agreed not to issue any marriage licenses" to same-sex couples until there was a change in the law.
As to Tuesday's effort by Santa Fe City Attorney Geno Zamora and Mayor David Coss, Salazar said, "I see it as a great attempt, but for a few hours to benefit a few, when in reality our laws should benefit all citizens in the state of New Mexico. The city is — I don't know what all their reasons are, but I know that they're doing this in the best interests of their constituents."
"I don't think that's in the best interest of the public. I think I would be causing more harm to our citizens if just started issuing licenses that create even more ambiguity. When the law changes, I will be happy to issue marriage licenses," she said.
Asked whether she believed the law should be clarified so that same-sex couples in New Mexico could clearly get married, Salazar said, "My personal view, yes. Marriage is a contract between two people."
Santa Fe City Attorney's Same-Sex Marriage Opinion
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at email@example.com.
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