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Highlighting 'vague' law, Santa Fe mayor encourages gay marriage

The Democratic mayor of Santa Fe is calling on New Mexico’s county clerks to begin issuing licenses to same-sex couples, saying it was time that everyone – including his lesbian daughter – should be treated equally under the law in a state that does not ban gay marriage.

New Mexico is one of two states in the country that neither specifically allows nor explicitly bans gays and lesbians from getting married (the other is New Jersey).

Nor does it offer civil unions or domestic partnerships to same-sex couples, according to the National Conference of State Legislatures.

The marriage statute, which does not specify gender, is “sufficiently vague” on the issue, said Phil Sisneros, a spokesman for New Mexico’s attorney general.

Mayor David Coss and City Attorney Geno Zamora teamed up to examine that legal question and believe that nothing in the state constitution or statutes prevent county clerks from issuing marriage licenses to same-sex couples. Zamora issued a legal analysis of these findings, and the City Council is expected to vote on a resolution in support of Coss’ call on March 27.

“People’s lives are short and when you’re waiting for your rights you know how long do you have to wait? I’m sorry we didn’t do it ten years ago. I don’t think we should wait another ten years before we push the issue,” Coss told NBC News. “Let’s start treating everybody equally under the law.”

Though the resolution does not carry legal weight, Zamora, who has a gay brother, said they wanted to send a message to the Supreme Court before it hears landmark cases next week challenging a federal law (Defense of Marriage Act, or DOMA) that bars recognition of same-sex couples and California’s Proposition 8, which prohibits gays and lesbians from getting married in the Golden State.

“The decision was made … we cannot wait any longer to protect the rights of our brothers and sisters, our colleagues and our community members,” he said. “It’s very important for cities and city attorney’s offices to enter this debate recognizing equal rights for their citizens.”

In 2004, a clerk for Sandoval county issued same-sex marriage licenses for one day before the state attorney general ordered her to stop, saying the 64 licenses were not valid, according to The Santa Fe New Mexican.

Santa Fe County Clerk Geraldine Salazar told the newspaper on Tuesday that she wasn’t going to issue licenses to gay and lesbian couples, even though she’d like to, because she felt she couldn’t under the law.

“I would love to be able to issue marriage licenses (to same sex couples) but under the current law, I feel I’m not free and clear to do so. The Legislature creates the laws and the judges interpret the laws and I as a county clerk do not create or interpret laws,” she said. “And I feel that my oath of office does not allow to me act counter to the laws of New Mexico.”

Sisneros, of the attorney general’s office, said that the issue was unclear and felt nothing was likely to happen until a county clerk attempted to grant a license to a same-sex couple. At that point, an anti-gay marriage group may file a lawsuit or the attorney general could be asked to weigh in, among other possible scenarios.

“This seems more properly characterized as an expression of the city’s position on same-sex marriages since it does not carry the force of law,” Sisneros said of the Santa Fe mayor’s resolution. “Our office, though, has not had the opportunity yet to weigh in on the specific question of whether same sex marriages are legal under New Mexico law."

Previous state bills to ban or approve same-sex marriage have been rejected by New Mexico's lawmakers.

Thomas Peters, a spokesman for the National Organization for Marriage which opposes same-sex marriage, said New Mexicans should be able to decide the issue for themselves. 

"Allow the debate to continue and the people to decide, not activists mayors and judges," he said in a statement.