Friday, September 20, 2013

Gary King's Statement About Marriage Equality

In a lengthy statement from the Attorney General's Office, AG Gary King today made his strongest statement yet on same-sex marriage and in the process took a swing at Gov. Susana Martinez -- who King hopes to be facing in the 2014 election.

King said he disagreed with Martinez and anyone else who believes the matter of marriage equality should be decided by voters. He points out that Emancipation Proclamation, the Constitutional amendment that gave women the right to vote and the 1964 Civil Rights Act were not put out for a popular vote.

Here's the statement in its entirety:  


The issue of same sex marriage has enveloped New Mexicans in recent weeks. Clearly, there are cultural, religious, political, and legal concerns that deserve consideration in any discussion of the issue. However, as Attorney General for the State of New Mexico, the legal aspects of this important issue are front and center for me. The extremely knowledgeable and capable staff attorneys in my Office, who have been diligently researching applicable law on the subject, also recognize that same sex marriage is an issue that affects the social fabric of our society. Because the issue is that important, I intend to proceed deliberately and as swiftly as possible to help move it through the legal process toward resolution. I thought it would helpful to give New Mexicans some perspective on what the Attorney General’s Office is doing to address the same sex marriage issue. 

Going back to the beginning of 2011, I was asked by New Mexico State Representative Al Park to provide a legal Opinion as to whether same-sex marriages performed in other jurisdictions are valid in New Mexico. A comprehensive legal analysis by my office concluded that valid same-sex marriages performed in other states are entitled to full faith and credit and should be valid in New Mexico. 

More recently, in July of this year, the New Mexico Supreme Court asked me to weigh in on the legal issues involving same sex marriage. Again, our exhaustive legal analysis concluded that (1) New Mexico's guarantee of equal protection requires that same-sex couples be allowed to marry the same way opposite-sex couples are; (2) NM’s statutory scheme does, in fact, prohibit same-sex marriage; and (3) the NM Supreme Court lacked jurisdiction to order county clerks, through a writ of mandamus, to issue marriage licenses to same sex couples. In the same response I also requested that, should the Court consider the merits of the constitutional argument raised by proponents of same sex marriage, it issue an opinion declaring New Mexico's prohibition on same-sex marriage to be unconstitutional under Article II, § 18 of the New Mexico Constitution. 

Here is where some critics have incorrectly interpreted the legal process. Some have said that I am trying to unilaterally disregard state law by not suing county clerks who have elected to issue same sex marriage licenses. Several District Courts have addressed the issue. Two separate judges essentially ordered two different county clerks to begin issuing marriage licenses to same sex couples. Another judge ruled that the state’s prohibitive statutes are unconstitutional, paving the way for another clerk to start issuing the licenses. I maintain that the best way to resolve this issue is for the NM Supreme Court to decide whether our current law is unconstitutional. 

In the last week of August I sent a letter to a county clerk advising her that my office had received reports that marriage licenses given to same sex couples in 2004 had been marked as “invalid” or “illegal.” I told the clerk that only a New Mexico court has the authority to void a marriage license. 

Finally, some people, including the governor, say that the issue of whether same sex couples should be afforded the same rights as everyone else in our state must be decided by the voters. I urge the reader to consider the following: The Emancipation Proclamation of 1863; The 19th Amendment (Women’s Suffrage) in 1920; the Civil Rights Act of 1964;---none of which were voted upon by the general electorate.

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