March 22 (Bloomberg) -- Two New Mexico same-sex couples sued for the right to marry after being denied licenses to do so by the office of the Albuquerque-based Bernalillo County Clerk, the American Civil Liberties Union said.
“The defendant’s employee, acting upon behalf and under the authority of defendant, stated that he or she could not issue them a license because the couple was of the same sex or because of the sexual orientation of each couple,” according to a copy of the complaint provided by the New York-based ACLU.
Micah McCoy, a spokeswoman for the ACLU, said the complaint was filed yesterday. The filing couldn’t immediately be confirmed in state court in Albuquerque.
New Mexico has no law or constitutional prohibition to the marriage of same-sex couples, according to the complaint. The couples argue the state’s constitution requires New Mexico to provide every person with due process and equal protection of state laws.
“Although the United States Constitution’s equal protection provisions have been construed to limit the extent to which federal and state governments can discriminate on the basis of sex, that Constitution contains no analog to the New Mexico equal rights amendment,” according to the complaint.
Maggie Oliver, named as the defendant in the case in her role as clerk of Bernalillo County, said in a phone interview that while she supports same-sex marriage, the constitutional right cited by the plaintiffs conflicts with a provision of New Mexico law that requires a male and a female to complete a marriage license.
“That’s been the basis of why I and my fellow clerks have not issued them,” and must continue denying same-sex marriage applications “until there’s some legal resolution to the matter,” Oliver said. “There’s a conflict in the law and it needs to be resolved,” either through the courts or the legislature, she said.
The state’s previous attorney general, Patricia Madrid, in 2004 issued a restraining order against a clerk in neighboring Sandoval County who issued marriage licenses to 64 same-sex couples, known as the “Sandoval 64” and whose marriages are considered legal, Oliver said.
Marriage licenses to same-sex couples ceased after the restraining order was issued, according to Oliver.
The plaintiffs in the case are Rose Griego, 47, and Kimberly Kiel, 44, of Santa Fe, and Miriam Rand, 63, and Ona Lara Porter, 66, of Albuquerque. They seek a court order that it’s unlawful to deny same-sex couples the right to marry.
The filing comes less than a week before the U.S. Supreme Court is scheduled to hear arguments on Proposition 8, the 2008 California ballot initiative that halted gay marriage after it was allowed for five months following a state Supreme Court decision.
President Barack Obama’s administration, in a court filing this month, urged the U.S. Supreme Court to reinstate same-sex marriage in California, calling for broad constitutional protections that ultimately could let gays marry nationwide.
The case is Griego v. Oliver, New Mexico Second Judicial District Court, County of Bernalillo (Albuquerque).
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