I\"EW MEXICO CITY OF SANTA FEO NO.

2013-_ RESOLUTTON INTRODUCED BY:

Mayor David Coss CouncilorPatti J. Bushee

A RBSOLUTION RECOGNIZING TIIAT SAME.SEX MARRIAGE IS LEGAL IN NEW MEXICO AI\D ENCOURAGING NEW MBXICO'S COTN\TY CLERIG TO ISSIJEMARRIAGE LICENSES TO SAME-SEX COUPLES.

WIIEREAS, the Charter of the City of SantaFe recognizesthat SantaFe has "a history of tolerancetowards all people, cultures, traditions, and lifestyles;" WHEREAS, the Charter also acknowledgesthat "the human and civil rights of the residentsof the City of SantaFe are inviolate and shall not be diminished or otherwise infringed;" and WIIEREAS, the struggle for equality among lesbian, gay, bisexual, and transgender people is the modem face of the Civil Rights Movement; and WIIEREAS, nine statesand the District of Columbia currently extend marriage licenses to same-sex couples; WHEREAS, SantaFe has always been a proud leader in recognizing basic human rights

and andin fighting against discrimination; anddoes is gender-neutral definitionof marriage WHEREAS, New Mexico's statutory and 40-1-1(1862-63); NMSA 1978, Section not definemarriage asbetween a mananda woman, prohibited in New Mexico includethose by statute WHEREAS, the only marriages 40-1-9,and of relationandthosewith minors,Section degree relatives within a specified between whenthey are marriage licenses to issue by statute New Mexico CountyClerksarerequired 40-1-10 yearsofage, Sections andareat leasteighteen arenot relatives satisfied that the parties to -13;and from other marriages same-sex recognizes WIIEREAS, New Mexicoalready (2011); jurisdictions, and 40-l-4;N.M. AG Op.No. 11-01 Section that equalrightsshall of New Mexicorequires of the State WHEREAS, the Constitution N.M. Const.art. II, Section18;and not be deniedon account of the sexof anyperson, areof the same the applicants is deniedsolelybecause license WHEREAS, if a marriage with the districtcourtto requirethe gender, thejudicial remedyis to file a writ of mandamus 3 and art.VI, Section pursuant to theNew Mexico Constitution the license, CountyClerk to issue (1884); NMSA 1978, Section44-2-4 NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF body,do hereby of the Santa Fe governing THE CITY OF SANTA FE that we, the members marriage is legalin our Stateandthat our recognize that,underNew Mexico law, same-sex of their choicefor the following reasons: State's citizenshavethe right to marrythe partner asbetween a mananda lawsdo not definemarriage 1. New Mexico marriage woman; is not marriage prohibitcertainmarriages, same-sex 2. Althoughour Statestatutes prohibited; from marriage stafutes, a valid same-sex 3. Pursuant to New Mexico marriage

in New Mexico;and stateis recognized another 4. To discriminate same-sex couples would violatetheNew Mexico against which requires equalityunderlaw regardless of sex. Constitution, BE IT FURTHER RESOLVED BY TIIE GOVERNING BODY OF THE CITY OF SAI\TA FE thatwe stronglyencourage New Mexico's CountyClerksto follow statelaw and who havethe right to marrythe person that issue marriage licenses couples to loving,committed gender. they love,includingthoseof the same

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PASSED, APPROVEDandADOPTEDthis _

dayof

20t3.

DAVID COSS,MAYOR ATTEST:

YOLANDA Y. VIGIL. CITY CLERK

APPROVED AS TO FORM:

GENOZAMORA, CITY ATTORNEY

caty of sa,mfta Feus$ewNffexre@

memo

CITYATTORNEY'S OFFICE OPINION FOR PUBLIC DISTRIBUTION & INCLUSION IN CIW COUNCIL PACKETS
To: From:
Members of the Governing Body

Jamison Barkley, Assistant CityAttorn"t@

Re : Date: Overview New Mexico'sstatutorydefinitionof marriageis gender-neutral.SinceNew Mexico does not define marriageas between a man and a woman, New Mexico does not prohibitsame-sex marriage, New Mexicoalreadyrecognizes same-sex marriages from other states, and the New MexicoConstitution requires equaltreatmenton the basis of sex,same-sex marriage is permittedin New Mexico. Background As of the date of this memorandum, nine statesand the Districtof Columbia offer marriage licensesto same-sexcouples: connecticut, lowa, Maine, Maryland, Massachusetts, New Hampshire, New York,Vermont,Washington, and the District of Columbia. Another group of statesconstitutionally or statutorilydefinesmarriage as betweena man and a woman. see J.L.M.v. s.A.K., 1g so.3d.3g4, 3g9 (Ala.civ. App. 2008) (recognizing that Alabama prohibits same-sexmarriage becauseit defines marriageas a "unique relationship between a man and a woman,,). New Mexico,s statutory definition of marriageis gender-neutral and does not define marriageas betweena man and a woman. SeeNMSAtgl9, S 40-1-1(1g62-63). Same-Sex Marriage in New Mexico March t9,2Ot3

Geno Zamora, City Attorneyfu

New MexicoAlreadyRecognizes Marriages Same-Sex from Other States performedin other states, New Mexicoalready recognizes marriages without regard to the sexof the parties: All marriages celebrated beyondthe limitsof this state,which are valid according to the laws of the country whereinthey were celebrated or contracted, valid in this state,and shallhavethe same shallbe likewise force as if they had beencelebrated in accordance with the lawsin force in this state. Section4O-t-4; Estate, 98 N.M. 722,726, 652 P.2d744,748 (Ct. see also ln re Bivians' App. 1982) ("New Mexico appliesthe rule of comity, that the law of the place of (concluding contractgoverns N.M.AG Op.No.11-01(2011) the validityof a marriage.l'); that a valid same-sex marriageperformedin another state is valid in New Mexico). performedin any of the jurisdictions Hence, same-sex marriages where they are valid are recognized as any New Mexicomarriage, in New Mexicoto the samedegree New Mexico DoesNot DefineMarriageas Betweena Man and a Woman New Mexico's doesnot referto the genderof the parties.Rather, definition of marriage it emphasizes the consentof the parties: "[m]arriage is contemplated by the law as a civil contract,for which the consent of the contractingparties,capablein law of contracting, is essential." NMSA L978, 5 40-1-1 (1862-63). Thus,the definitionof marriage in New Mexicois genderneutraland doesnot include the restrictive definition "o n e m an and one woman." ld. A MarriageLicense on the Sexof the Couple May Not be DeniedBased CountyClerks are mandated underNew Mexicolawto issue marriage licenses. The only baseson which marriagelicenses can be deniedare when the potentialspouses are relatives to a closedegreeand when one of them is a minor. See$ 40-L-9.Same-sex marriage is not amongthe categories of prohibited marriages in New Mexico, The New Mexico ConstitutionGuarantees EqualRightson the Basisof Sex Althoughthe statutorymarriageapplication form is described in terms of male and femaleapplicants, the form is trumpedby the specific language of the marriage statute, which does not requirethat the applicants be of the opposite sex. Moreover, the New Mexico Constitutionrequiresequality of rights under the law. The Equal Rights Amendment states:

No personshallbe deprived of life,libertyor propertywithout due process of law; nor shall any person be denied equal protectionof the laws. Equality of rightsunder law shallnot be deniedon accountof the sex of any person. N.M. Const. art. ll, $ L8. Because the New MexicoConstitution trumpsstatestatute, the requirements are controlling. of the Equal Rights Amendment Substantial Compliance and Waiver of FormAre Permitted A countyclerkcould substantially complywith the statutoryform providedeven if the marryingpartiesare same-sex couples.See NMSA1978,E 40-7-17 to -18 ("Theform of providedhereinshallbe substantially application, license and certificate as follows. . . ."1. Further,Section 4O-7-L2 allows sectionsof the marriagecode to be waived. Therefore,in addition to the form not conformingwith the more specificmarriage Amendment, statute,and beingtrumped by the EqualRights same-sex applicants and CountyClerks may substantially complywith the form or request a waiverof the form. Same-Sex CouplesMay Petitionfor a Writ of Mandamusif Denieda MarriageLicense lf its application is denied,a coupleshouldpetitionthe district for a rnarriage license court for a writ of mandamus directing the County Clerk to issue the license because the genderof the applicants is not a statutorygroundfor denial. N.M. Const. art. Vl, S 3; 5 44-2-4(1884). Conclusion New Mexicolaw does not definemarriage as betweena man and a woman. Nor does New Mexicoalready New Mexicolaw prohibitsame-sex marriage. recognizes same-sex performedin other statesand our Constitution marriages requires equaltreatmenton the basis is legalin New Mexico. of sex. Same-sex marriage