UPDATE, 6:32pm: Well, that was impressively shortlived.
Attorney General Says Licenses Invalid (Albuquerque Journal, February 20, 2004): By Susan Montoya Bryan
The Associated Press
BERNALILLO, N.M. — Dozens of gay and lesbian couples descended on this rural New Mexico town to tie the knot Friday after the Republican county clerk's surprise decision to grant marriage licenses to same-sex couples. But hours after the marriages began, New Mexico Attorney General Patricia Madrid said the licenses "would be invalid under current law."
Madrid's "advisory" opinion came in the form of a letter to state Sen. Timothy Jennings, who had sought the advice after the marriages began Friday morning in Bernalillo. "Until the laws are changed through the legislative process or declared unconstitutional by the judicial process, the statutes limit marriage in New Mexico to a man and a woman," Madrid wrote. "Thus in my judgment, no county clerk should issue a marriage license to same sex couples because those licenses would be invalid under current law."
Sandoval County Clerk Victoria Dunlap had set the unusual day in motion with her decision Thursday to grant the licenses. Her decision came a week after San Francisco agreed to marry thousands of gay couples in a direct challenge to California law. "It's going to be across the country and so we wanted to be ahead of the curve," Dunlap said Friday. By Friday afternoon, a line snaked outside the clerk's office, housed in the county courthouse. About 100 people had requested applications and many of those had been turned back in, stamped and recorded, the clerk's office said. Outside, two preachers held impromptu ceremonies near the main drag of the usually sleepy village along the Rio Grande.
For all that it would have been nice to have things continue this way ... I rather agree with the attorney general. Until the 1961 statute is challenged and overturned in court as a violation of the superceding Equal Rights Act, the clerk really has no legal authority to issue licenses in the name of the state.
I would expect the law to be challenged any second now, of course, this having been set into motion.
Surprising that this, of all things, managed to be the first one of the administrative license issues to be ruled unlawful. Then again, it was surprising that it got underway in this locale in the first place.
Original post
It comes from the most unexpected places, doesn't it?
Albuquerque Tribune Online: Gays wed in Bernalillo By Leann Holt and Jennifer W. Sanchez, Tribune Reporters (February 20, 2004): BERNALILLO - Bernalillo is a long way from San Francisco, but today the two bore a striking resemblance. At 8 a.m. today, same-sex couples came pouring into the Sandoval County courthouse to apply for marriage licenses. Word that Sandoval County Clerk Victoria Dunlap would issue same-sex marriage licenses traveled quickly through the gay community last night and this morning. The couples came in droves, holding hands and looking dazed.
Jennifer Albright and Anne Schultz got a call early this morning from longtime friends Linda Rogers and Melissa Jameson. "We were asleep when they called," Schultz said. "They told us to get down to the courthouse right away. We never saw this coming."
Courthouse clerks had taken more than 100 calls about the licenses early this morning. Clerk Gary Williams was accommodating the line of applicants that snaked down the hall. "We haven't seen this much activity since Valentine's Day," Williams said. By 11:30 this morning, more than 20 licenses had been issued.
Until today, the county had never issued a same-sex marriage license, Dunlap said. She said she got a call last week from someone asking whether the county would issue a marriage license to a same-sex couple. David Mathews, the county's attorney said it was OK by law, Dunlap said. "We saw nothing that prohibited same-sex marriages in New Mexico," she said this morning. "I looked at the law. If I don't issue these, it's grounds for . . . my removal from office."
Dunlap was in Santa Fe this morning waiting for a response from State Attorney General Patricia Madrid. Madrid received two letters this morning from state senators requesting a legal opinion on the lawfulness of same-sex marriages in New Mexico, a spokeswoman said. "We're definitely looking into it - we're doing our research," said Sam Thompson, a spokeswoman for Madrid.
One can hardly wait to see what the NM state attorney general says in response. The state's Equal Rights Act -- New Mexico's version of the Equal Rights Amendment -- may wind up controlling whether or not the state can deny marriage licenses to same sex couples. Since it was an amendment to the state constitution (I think ... it would appear to be the final sentence of Article II, Section 18), the Equal Rights Act trumps any simple statute -- and the only statute mentions the gender of licensees in a fairly offhand way; there was no deliberate intent to exclude. In 1961, they just didn't think about this issue at all.
(Purely a side note: the New Mexico state constitution has some intriguingly nasty articles. For one thing, the Victim's Rights Amendment states, rather pointedly, "A person accused or convicted of a crime against a victim shall have no standing to object to any failure by any person to comply with the provisions of Subsection A of Section 24 of Article 2 of the constitution of New Mexico. " That would be the Bill of Rights of the state of New Mexico, including such luxurious unnecessaries such as the right of habeas corpus, freedom from illegal searches and seizures, trial by jury, and other fun stuff like that. For some reason, the state constitution holds that if you are merely accused of a crime against a person, you forfeit your individual rights. One wonders if that law has been challenged and ruled in violation of the US Constitution as yet. It would certainly appear to be unconstitutional on its face. But I digress.)
It is interesting how this seems to be taking on this weird surreal express-train quality, isn't it? Massachusetts, then Oregon says regretfully that it would have to recognize such marriages, then San Francisco challenges the state, and now this.
Posted by iain at February 20, 2004 04:51 PM
