New Mexico Attorney General refuses to defend marriage, urges justices to litigate from the bench

SANTA FE, NM, July 23, 2013 (LifeSiteNews.com) – The state attorney general of New Mexico has said he will not defend the state's implicit ban on same-sex “marriage” against a legal challenge and has urged the state Supreme Court to redefine marriage from the bench.

New Mexico Attorney General Gary King, a Democrat, plans to challenge Republican Governor Susanna Martinez in next year's election.

King filed a brief telling the justices that “New Mexico's guarantee of equal protection to its citizens demands that same-sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens.”

New Mexico is the only state in the nation without any law addressing homosexual marriages, either for or against. A committee in the state legislature voted against a measure to redefine marriage in February. But homosexuals who are considered married in other states have those unions recognized within the state.

Now two Santa Fe men, Alexander Hanna and Von Hudson, have asked the high court to order Santa Fe County Clerk Geraldine Salazar to issue them a marriage license.

However, King opposes that portion of the lawsuit, saying the law does not currently permit the issurance of such licenses to homosexuals.

The two men took the unusual step of filing the case directly with the state supreme court, a move the justices may reject on procedural grounds.

Sandoval County Clerk Victoria Dunlap took advantage of the legal ambiguity to issue same sex marriage licenses in February 2004 – for eight hours, until Attorney General Patricia Madrid ordered her to stop, saying there is no legal authority to marry gays and lesbians.

King's refusal to defend what he acknowledges as a de facto legal prohibition on gay “marriage” is the latest in a line of passive aggressive behavior from officials who have allowed the homosexual lobby to succeed in court by default.

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Most famous is President Barack Obama, who made no effort to defend the federal Defense of Marriage Act (DOMA) in court. Ultimately, his administration filed an amicus brief with the U.S. Supreme Court calling for justices to invalidate the 1996 law.

The Supreme Court effectively legalized same-sex “marriage” against the voters' will in California, ruling that the state's voters lacked the legal "standing" to defend Proposition 8 before the bench after then-Attorney General Jerry Brown broke his pledge to do so.

On July 11, Pennsylvania AG Kathleen Kane said she would not defend that state's defense of marriage act.

The next day the attorney general of North Carolia, Democrat Roy Cooper, said he would defend the state's constitution but would allow the ACLU to amend an existing case to challenge the amendment.

All three state attorney generals are Democrats.

However, New Mexico politics are complicated. Former Governor Gary Johnson ran for president briefly as a Republican and then the Libertarian Party candidate in 2012, strongly supports same-sex "marriage."

Having a law on the books, even a state constitutional amendment defining marriage, is no guarantee officials will honor it. In Ohio on Monday U.S. District Judge Timothy Black, an Obama appointee, ordered a Cincinnati registrar to recognize an out-of-state gay “marriage,” although the state has a constitutional amendment defining marriage as the union of one man and one woman.

Ohio's state attorney general, Mike DeWine, has not yet stated whether he or Governor John Kasich will defend the measure in court. But DeWine, a Republican, opposed the amendment in 2004, when he was a U.S. Senator.

Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, strongly favors same-sex "marriage." But he said the Supreme Court's ruling in Proposition 8 dramatically expands the authority of the executive branch.

“The decision based on standing actually gives a lot of power to executives,” he said. “That means anytime the governor and attorney general of a state, or indeed of the United States” dislike a law, “all they have to do is ask one of their friends to file a lawsuit against that particular law and then decline to defend it in court.”

“If nobody can defend [state propositions] once the executive declines to, then effectivley the governor or the attorney general can nullify these laws,” Shapiro said. “That is very dangerous for executive power.”