GAY MARRIAGE State Supreme Court likely to uphold gay marriages, both sides say

A leading legislative advocate against same-sex marriage and at least some gay-rights activists agree on one thing: After a two-hour hearing in which the state Supreme Court grilled lawyers about same sex-marriage, both said they believe the court will strike down laws prohibiting gay couples from marrying.

The case, Griego vs. Oliver, was filed several months ago after Bernalillo County Clerk Maggie Toulouse Oliver refused to issue licenses to two lesbian couples. Four other same-sex couples who were denied licenses in Albuquerque later joined the suit. A few months later, a state district judge in Albuquerque ordered Oliver — who personally supports same-sex marriage — to not deny marriage licenses to same-sex couples.

The highly charged issue has rippled through political circles since the Legislature declined to resolve it last session. It bubbled over when same-sex couples in Las Cruces, Bernalillo and Santa Fe counties asked county clerks to issue marriage licenses. At first they declined, but then judicial filings cleared the way for same-sex licenses in some counties, but not others. The case was accepted by the five-member court when all 33 county clerks across the state asked for clarity on the laws. The Supreme Court did not indicate when it might issue a ruling, and it could take months.

“I think the die was cast before we came in here,” State Sen. Bill Sharer, R-Farmington, told a reporter during a break at the hearing. Sharer is part of a group of current and former Republican lawmakers who have filed lawsuits trying to stop county clerks around the state from issuing marriage licenses to same-sex couples. But, he added, “whatever happens here [in the Supreme Court] won’t be the last word. It’s not over until the people have spoken.”

Santa Fe couple Rose Griego and Kim Kiel — who are plaintiffs in the case before the high court Wednesday — both expressed optimism after the hearing. “I’m super excited,” Griego said. “It’s historic, and I’m so happy that this is going to help a lot of people.”

Kiel agreed. “I feel really good that the outcome will be positive.” Griego and Kiel got married in Santa Fe in August after a judge ordered County Clerk Geraldine Salazar to issue marriage licenses to same-sex couples.

During the hearing, Supreme Court justices questioned lawyers on both sides on points of law. Arizona attorney James Campbell, who represented the GOP legislators, seemed to get peppered with the most questions.

At one point, Justice Richard Bosson asked Campbell point blank, “Why shouldn’t you be able to marry who you choose?”

Campbell argued that the government has a compelling interest in marriage because it encourages “procreative relationships.”

Bosson countered that in state marriage laws, “there’s not word one about encouraging procreation.”

Justice Charles Daniels pointed out that opposite-sex couples get to file joint tax returns and have inheritance rights and joint-ownership rights whether or not they have children. Daniels also asked Campbell how allowing gay people to marry would discourage heterosexual couples from getting married.

Gay couples can marry in states that allow it, then have their marriages legally recognized in New Mexico, Daniels noted. “How is that rational for the state to say it’s OK to live as a married couple, just don’t get married in New Mexico?”

Justice Barbara Vigil asked Campbell for “empirical data” that being raised by same-sex parents is adverse for children. Campbell conceded there isn’t such data. But he cited statistics from the Netherlands that the marriage rate went down and the rate of children born to unwed mothers went up after that country legalized gay marriage.

Daniels said that in “the real world,” the same-sex marriage issue is a religious debate — which, he said, had no place in the court. Campbell disagreed and said several philosophers and legal scholars who aren’t religious support the traditional idea of marriage.

Campbell himself is part of a Christian law group called Alliance Defending Freedom, which, according to its website, advocates “the spread of the Gospel by transforming the legal system and advocating for religious liberty, the sanctity of life, and marriage and family.”

Campbell argued that the Legislature and voters, not the court, should decide on this policy.

Maureen Sanders, an Albuquerque lawyer representing the six couples who initially were denied marriage licenses, said the issue should not be decided by state voters, as has been suggested by Gov. Susana Martinez and others. “It has never been the policy of this court to allow civil rights to be sent for a public vote,” she told the justices.

Sanders said denying marriage for gay and lesbian couples is against the state constitution, which guarantees equal protection under the law and prohibits discrimination based on sexual orientation.

No new right is being created, Sanders argued. When the U.S. Supreme Court decided in 1967 that laws against black people marrying white people were unconstitutional, there was not a new right of “interracial marriage” created, she said.

Also arguing in favor of removing the prohibitions against same-sex marriage were lawyers on the staff of Attorney General Gary King, whose position also is that prohibiting gay marriage violates the state constitution.

Many of the seats in the crowded courtroom were filled by county clerks from around the state. In the front row were Oliver, Salazar and Doña Ana County Clerk Lynn Ellins, whose decision last August to begin issuing licenses to gay couples opened the proverbial floodgates. Currently, eight of New Mexico’s 33 counties issue licenses to homosexual couples.

Daniel Ivey Soto, representing the state’s county clerks (he’s also a Democratic state senator from Albuquerque), told the justices the clerks feel like they’re caught in the middle of the issue. And whether the individual clerks are for or against gay marriage, they want the court to make a definitive decision on the issue, he said.

“Then if the Legislature wants to change it, we’ll have a clear benchmark,” he said.

Ivey-Soto said 1,466 same-sex couples in the state have been married in the state since August.

Salazar said 446 same-sex couples had been issued licenses in Santa Fe County as of Oct. 18. Another 548 licenses have been issued in Bernalillo County, Oliver said, while Doña Ana County has issued 316 licenses to same-sex couples, Ellins said. Los Alamos County Clerk Sharon Stover said she has issued licenses to only four same-sex couples since a court ordered her to do so.