Read the briefs filed yesterday in New Mexico’s same-sex marriage cases

(UPDATE, Sept. 24, 2013: Please note that the following post is from July 23, 2013. If you would like to read the briefs filed in the latest stage of Griego v. Oliver, please see this more recent post.)

Yesterday (July 22, 2013) was the deadline for response briefs in Hanna v. Salazar, the writ of mandamus proceeding presently pending in the New Mexico Supreme Court in which petitioners (two gay men) are asking the Court to compel the Santa Fe County Clerk to issue them a marriage license. Such a ruling would effectively legalize same-sex marriage in New Mexico.

The City of Santa Fe also submitted an amicus brief yesterday, and I expect that other groups or organizations may also have filed amicus briefs, or may still seek to file them. To the extent that I can obtain copies of all the briefs, I will post them here, so check back later if you don’t see the brief you want to read listed below (or if you have a brief and would like me to post it, please send it to me at

1.  Attorney General King’s Response to Petition for Writ of Mandamus: In this brief, the Attorney General argues that there is a constitutional right to same-sex marriage, that New Mexico law presently does not allow same-sex marriage, and that mandamus is not a proper remedy for petitioners. Therefore, the Attorney General is asking that the petition be denied. (Thanks to Assistant Attorney General Scott Fuqua for sending this to me).

2.  Santa Fe County Clerk’s Response to Petition for Writ of Mandamus: In this brief, the County Clerk argues that mandamus is improper against county officials, that New Mexico’s marriage laws do not contemplate same-sex marriage, and that the County Clerk has not violated the state constitution’s Equal Rights Amendment or Equal Protection provisions.  The Clerk asks that the petition be denied. (Note that the version of this brief I’m posting here does not contain the attachments indicated within the brief.  If I receive a version with attachments, I will post it here.)

3.  Brief of Amici Curiae New Mexico State Legislators in Support of Respondent: In this brief, several state legislators argue that mandamus is not a proper remedy for petitioners, and that the petition should be denied because limiting marriage to opposite-sex marriage is entirely constitutional. I believe a nearly identical amicus brief has also been submitted in Griego v. Oliver, the mandamus proceeding filed by the ACLU. The Court has not yet ruled on whether to grant the motion to file this brief, but the Court’s usual practice is to liberally allow the filing of amicus briefs.

This brief was filed on behalf of State Senators Ron Griggs, Carroll H. Leavell, Mark Moores, Steven Neville, Cliff R. Pirtle, William E. Sharer, and Pat Woods; and on behalf of State Representatives David M. Gallegos, Jimmie C. Hall, Yvette Herrell, Dennis J. Roch, James R.J. Stickler, and Bob Wooley.  (Thanks to Alliance Defending Freedom for sending this to me).

4.  City of Santa Fe’s Amicus Curiae Brief in Support of Petitioners: The City’s brief argues in support of petitioners that mandamus is a proper remedy, that New Mexico’s marriage laws already allow same-sex marriage, and that any prohibition on same-sex marriage would violate the equal rights guarantees of the New Mexico Constitution.  (Thanks to City Attorney Geno Zamora for sending this to me).

As with the legislators’ amicus brief, I don’t think the Court has yet granted the City’s motion to file this brief, but I expect it will do so.

If you know of any other briefs that have been filed in this important case, please let me know.  Or if you file one in the future, please feel free to send it to me, and I’ll be glad to post it here.

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3 Responses to Read the briefs filed yesterday in New Mexico’s same-sex marriage cases

  1. Michael Ejercito says:

    A denial of the petition will not necessarily mean that marriage equality claims in New Mexico states are foreclosed. If the petition is summarily denied, that does not set precedent. It does not even prevent the petitioners from litigating the issues in another court; res judicata will not attach.

    A dismissal of the petition, followed by a merits opinion, will set precedent and attach res judicata to the parties.

    • Emil J. Kiehne says:

      Mr. Ejercito,

      Thanks for your comment. You are correct that if the present petitions for mandamus are denied without reaching the merits, that does not foreclose the claims from proceeding in the lower courts.

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