Every year since she first started teaching same-sex marriage law at UNM 18 years ago, Antoinette Sedillo Lopez said something new has happened in the area.
This year, one of the developments is taking place very close to home.
The New Mexico Supreme Court will convene Wednesday to decide whether same-sex marriage is constitutional in the state.
Lopez said same-sex marriage in New Mexico first became an issue when litigants tried to sue in the Supreme Court in an attempt to get the court to decide on the issue. The court decided not to rule on the issue because there was no concrete case, she said.
After the county clerk in Doña Ana decided to start issuing licenses in August, other counties started issuing licenses as well, Lopez said. She said the clerk decided to do this because the New Mexico statute is not gender specific when defining marriage.
“It doesn’t say anything about a man and a woman,” she said.
According to the New Mexico Compilation Commission website, the statute states that “marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.”
Lopez said after the counties started issuing the licenses, the New Mexico attorney general decided not to challenge the county clerks’ decision. She said a group of Republican legislators then tried to file an injunction to stop the licenses from being issued.
An organization of county clerks decided they wanted clarity on what they should do, Lopez said, so they approached the Supreme Court.
“So the lawsuit involves the county clerks’ association and the Republican legislators and the seven clerks who have been issuing the licenses,” she said. “So that’s why it’s there. It got there in a really complicated way, but that’s why it’s there.”
Lopez said New Mexico is the only state legalizing same-sex marriage county by county.
“We’re very unique in that way,” she said. “Most states define marriage as between a man and a woman or they permit same-sex marriage or there are some states that maybe don’t permit same-sex marriage, but they’ll have domestic partnerships, or civil unions.”
Though it is hard to predict what the court will do, Lopez said she is optimistic the court would approve same-sex marriage.
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“I personally believe that because New Mexico adopted the Equal Rights Amendment and made all of these statutes gender neutral, and because marriage is a custom and a legal concept that’s changed over time, I think it may be possible that the Supreme Court may determine that it violates the Equal Rights Amendment to exclude same-sex couples,” she said.
Lopez said current cultural changes may also work in favor of legalizing same-sex marriage.
“We’re in a gigantic cultural shift,” she said. “And I just think the court is going to recognize that.”
