Wednesday, March 20, 2013
Bernalillo County Clerk Maggie Toulouse Oliver reacted today to the news that Santa Fe City Attorney Geno Zamora issued a legal opinion that same-sex marriages are legal in New Mexico and calling on County Clerks to issue marriage licenses.
"I have been apprised of City Attorney Zamora’s legal opinion and I can’t say that I disagree with the bulk of the opinion. County Clerks, however, are not policy makers or policy interpreters, we are policy implementers. We are not allowed to use our own discretion in interpreting the law, but must follow the law and, where there is conflict, use the best guidance we are given in order to uphold our oaths of office,” says Clerk Toulouse Oliver.
Currently, there appears to be a conflict in the law around marriages in New Mexico. According to City Attorney Zamora’s opinion, neither the constitution nor the marriage statute prevent same-sex couples from getting married. However, the statute that puts forth the form of the marriage license application requires a male and a female applicant. The most recent legal guidance from the State Attorney General’s office on this issue is that the statute in question (NMSA 40-1-18) prevents a clerk from issuing a license to a male/male or female/female couple.
“While the law may indeed permit marriage between same-sex couples, it also prevents those couples from effectively applying for a marriage license, which is why County Clerks cannot issue marriage licenses in these instances. While this may seem a semantic distinction, it is a problem nonetheless for County Clerks, including me, who are bound to follow the law,” says Clerk Toulouse Oliver.
“While I am personally in favor of same-sex marriage, my hands are legally tied at the moment. While I appreciate the Santa Fe City Attorney’s legal opinion, it is still just an opinion, and one that conflicts with another legal opinion on the issue. I believe the best solution would be for either the courts or the legislature to weigh-in and clarify this issue not only for County Clerks but also for all those who have a vested interest in this issue.”
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