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c. Rudi Klimpert

AG: State law limits marriage to opposite sex couples—raises question of constitutionality of NM Law

On June 6, Attorney General Gary King said, “Based on extensive research, we cannot state definitively that New Mexico law currently permits same-sex marriage. Although state statutes may limit marriage to couples of the opposite sex, this does not mean they will pass constitutional muster. New Mexico statutes that preclude same-sex couples from marrying are vulnerable to challenge under the equal protection guarantees of the federal and state constitutions.”

AG King also announced that because there is currently an active lawsuit in Bernalillo County over the issue of same-sex marriage licenses, he would not issue a formal AG’s Opinion, which is consistent with the Attorney General’s Office usual practice of not issuing an opinion while a lawsuit is pending.

New Mexico Representative William J. McCamley, of Doña Ana County, had requested an opinion regarding whether county clerks in New Mexico can legally issue marriage licenses to same-sex couples. Representative McCamley made his request in light of a March 19, 2013 memorandum written by the Santa Fe City Attorney, which concluded that same-sex marriage was legal under current New Mexico law.

Soon after the City of Santa Fe released the March 19 memorandum, two same-sex couples filed a lawsuit challenging the Bernalillo County Clerk’s refusal to issue the couples a marriage license. The lawsuit raises issues similar to those raised in Representative McCamley’s opinion request.

AG King adds, “I am keenly aware that some county clerks may have been waiting for direction regarding their authority under current New Mexico law to issue marriage licenses to same-sex couples. Because of our conclusion, we caution against issuing marriage licenses to same-sex couples before the courts have decided the issue or the legislature changes the law.”

It is important to note that the Attorney General’s Office does not have general superintending control over the county clerks and, as a rule, does not provide them with legal advice.

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