New Mexico gay marriage legal since…2004?

Many AMERICAblog regulars probably remember the famous time when, for one month in early 2004, gay and lesbian couples were getting married in San Francisco, California.

Then-Mayor (now Lieutenant Governor) Gavin Newsom made the decision that California’s equal protection clause gave him the authority to order city clerks to begin issuing marriage licenses to same sex couples.

This was made possible in part because the City of San Francisco and the County are one and the same. Gay marriage was a reality in California… for a short while.

The California Supreme Court was brought in, and they stopped everything and annulled all the marriages, including the one that resulted in the certificate my wife and I still hang on our wall. (And occasionally remember to dust…)

Gay marriage via Shutterstock

Gay marriage via Shutterstock

Other locales joined San Francisco’s act of civil disobedience

What most folks don’t know is something very interesting happened around the country at the same time, sparked by the events in San Francisco. City and county officials in a number of places began issuing licenses as well, including in New Paltz NY, Multnomah County OR, Asbury Park NJ…and Sandoval County, New Mexico.

Sandoval County NM official logo

Sandoval County NM official logo

On February 20, 2004, Sandoval County Clerk Victoria Dunlap (Republican, believe it or not) announced she’d begin issuing licenses to same sex couples. Her decision, she said, was based on her interpretation of New Mexico’s equal protection laws, just as Newsom had done.

By the end of the day, 66 licenses had been issued. That night, an emergency injunction was granted, barring Dunlap from issuing any more. (Sad side note: Dunlap was essentially drummed out of politics altogether by the state GOP for her actions.) Later, the courts would also slap on a formal restraining order against Dunlap, after she threatened to start issuing licenses again.

On February 23rd, the Sandoval County Commissioners met and voted to allow the gay and lesbian couples who had received licenses to file them, subject to the usual 30-day limit from the day of issue. By March 23rd, of the 66 licenses issued, 64 were returned and registered. However, New Mexico’s State Attorney General at the time, Patricia Madrid, issued a statement saying in her opinion those marriages were invalid.

Key detail to remember: The Attorney General’s office is not a court of law. They are merely the states’ chief lawyers. Their opinions are important and significant, but not legally binding. Oh, and one more — that restraining order expired at the end of Dunlap’s term of office, January 1, 2005.

Fast forward to the summer of 2010

In 2010, a peculiar divorce case came before NM District Judge Sarah Singleton. One of the “Sandoval 64” couples wanted an official legal dissolution of their marriage. If that name sounds familiar, it should: Judge Singleton is the same state district judge who last week ordered Santa Fe county to begin issuing same sex marriage licenses.

On August 9th of that year, Singleton ruled that the couple’s marriage was indeed valid and eligible for divorce proceedings. She did not, however, rule on the larger issue of marriage equality in the state as a whole. (Until just last week, when everything changed…)

The “Sandoval 64” marriages from 2004 are still valid

In a development late on Wednesday, 28 Aug 2013, New Mexico’s current Attorney General Gary King said he’d been informed Sandoval county had marked, in their records, that those 2004 marriages were invalid. He issued a formal statement:

“It has come to the attention of this office that you have discovered the word ‘void’ or ‘illegal’ affixed to marriage licenses issued to same sex couples by the former Sandoval County clerk in 2004. Under New Mexico law … it is clear only courts of New Mexico are invested with the authority to void marriage licenses.”

He further added that absent a court directive, while county clerks have the authority to issue licenses, they do not have the right to void one that was duly issued and properly registered. Even if it was a same sex marriage.

While this may seem confusing — “Isn’t King doing the same as Madrid did, only in the other direction?” — it’s actually not.

What King is saying is that no NM state attorney general can make a legal determination as to the validity of a properly registered marriage, only the courts can do that. Moreover, the presumption as to validity falls in favor of the couple getting married. Once you turn in that license and the clerk stamps it as accepted and registered, that’s it — you’re married. And it can’t be voided without a court decision saying so.

Which never happened in New Mexico.

The legal reasoning here is similar to that from the California Supreme Court in the aftermath of Prop 8, where they ruled in favor of upholding validity of the roughly 18,000 same sex marriages performed during that state’s proverbial “Summer of Love.”

And wouldn’t you know, there’s that ruling from just two years ago, in which a NM state district judge did rule that the marriages were legal, valid, and binding under the law. A ruling that was never challenged.

I don’t know what the numbers are today, but there are clearly still at least several dozen same sex couples in New Mexico who, despite the state’s refusal to recognize those marriages for nearly ten years now, have been legally married all along.

In addition, putting all these details in context and order, the conclusion is unavoidable: All these gay and lesbian couples getting married in New Mexico right now? They are legally married, and will continue to be considered such by law (including even the Feds), even if the licenses are stopped, unless the courts say otherwise.

What remains is litigation to force the New Mexico State government to fully recognize those marriages and be compelled to extend the rights, privileges, and legal obligations owed them. And that, my friends, is almost certain to be a New Mexico Supreme Court-level decision.

Sandoval had been sitting this one out…so far

In Thursday’s developments, a lesbian couple — Carolyn VanHousen and Gail Gering — attempted to get a marriage license from Sandoval county, and were “resolutely” refused.

Sandoval County Clerk Eileen Garbagni says she won’t issue the certificates until a judge gives her the go-ahead.

The ACLU has said they will help file that lawsuit right away. (Update: Los Alamos county is on the list now, too.)

Published professional writer and poet, Becca had a three decade career in technical writing and consulting before selling off most of her possessions in 2006 to go live at an ashram in India for 3 years. She loves literature (especially science fiction), technology and science, progressive politics, cool electronic gadgets, and perfecting Hatch green chile recipes. Fortunately for this last, Becca and her wife currently live in New Mexico. @BeccaMorn

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