ACLU and others seek to legalize same-sex marriage in New Mexico

The American Civil Liberties Union of New Mexico and others on Tuesday asked the state's Supreme Court to rule on the issue of same-sex marriage.

The ACLU was joined by the National Center for Lesbian Rights (NCLR), Albuquerque law firm Sutin, Thayer & Brown PC and Albuquerque attorneys Maureen Sanders, Kate Girard and Lynn Perls.

Using a special legal action known as a writ of mandamus, the groups are seeking to have the New Mexico Supreme Court resolve the issue without waiting for lower courts to rule.

The groups noted the state's definition of marriage was already gender-neutral. Marriage is simply defined as "a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential." State law only prohibits marriage "based on age and degree of familial relationship between the contracting parties."

The groups also argued interpreting New Mexico law to exclude same-sex couples from marriage violated the state constitution's guarantee of equal protection under the law.

The New Mexico Supreme Court was petitioned directly thanks to the U.S. Supreme Court's recent decision to strike down a key provision of the federal Defense of Marriage Act.

“The United States Supreme Court’s decision to overturn DOMA has increased our sense of urgency to clarify the ability of same-sex couples to marry in New Mexico,” said ACLU-NM Executive Director Peter Simonson. “With all barriers to federal recognition removed, our State cannot stand by as thousands of same-sex couples, many of whom were married out of state, continue to be denied those protections.”

New Mexico Attorney General Gary King has said the Supreme Court's DOMA ruling did "not have an immediate impact on New Mexico law." However, he also suggested the ruling would indirectly change state law.

"I think the language in today’s DOMA/Windsor ruling should be quite helpful to our courts in determining the constitutionality of New Mexico’s statutes that prevent same sex marriage."