Petition for mandamus asks NM Supreme Court to recognize same-sex marriage

Joey Peters has this story in the Santa Fe Reporter, reporting that State Representative Brian Egolf (D-Santa Fe), who is an attorney, has filed a petition for writ of mandamus in the New Mexico Supreme Court on behalf of two men, Alexander Hanna and Yon Hudson, who would like to get married, but were denied a license by the Santa Fe County Clerk.  The article helpfully includes a copy of the petition.

The petitioners are asking the Court to issue a writ of mandamus directing the Santa Fe County Clerk to issue a marriage license to them. Petitioners raise several arguments: (a) that the Court should hear the case because it is a matter of great public importance; (b) that the plain language of the marriage statutes does not require that a couple consist of persons of the opposite sex to obtain a marriage license; and (c) that if the marriage statutes do limit the issuance of marriage licenses to opposite-sex couples, then that limitation violates the Equal Rights Amendment of the New Mexico Constitution, as well as the Equal Protection and Due Process Clauses of the New Mexico and federal constitutions.

I don’t think anyone could disagree with petitioners’ statement that this issue is one of great public importance, but I am skeptical that mandamus is a proper remedy for the petitioners, for the following reasons:

1.  The Supreme Court has previously held that mandamus lies only where an official’s “duty to perform the act is clearly enjoined by law and where there is no other plain, speedy and adequate remedy in the ordinary course of law.” El Dorado at Santa Fe, Inc. v. Board of County Com’rs of Santa Fe County, 89 N.M. 313, 316, 551 P.2d 1360, 1364 (1976).  But the only thing that’s “clear” is that the legality of same-sex marriage is an issue of first impression in New Mexico, and it’s validity is anything but clear. It is also possible to raise these sorts of claims in the district court, so an “adequate remedy” does seem to exist.

2.  With respect to the state constitutional claims, in New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, 126 N.M. 788, 975 P.2d 841, the Supreme Court made it clear that even where heightened scrutiny applies to a statute or regulation, the State should have the opportunity to demonstrate its interest in upholding the statute. In addition, all state statutes have a strong presumption of constitutionality.

The State is therefore entitled to an opportunity to make an evidentiary showing of the rationality of and interests supporting the status of marriage as a relationship between one man and one woman.  The Supreme Court, though, is not a fact-finding court, and I doubt that the Court would be interested in conducting evidentiary hearings, but will probably be more inclined to allow this issue to be fully aired-out in the lower courts.

3.  Although petitioners have presented their statutory and constitutional arguments in the petition with gusto, I think it’s hard to argue that these claims are “clearly” correct for purposes of mandamus. With respect to the federal Equal Protection and Due Process arguments, of course, we are still waiting a definitive resolution from the Supreme Court of the United States.

With respect to the state constitutional and statutory arguments, our Supreme Court has repeatedly held that state constitutional provisions, and state statutes, are to be given the meaning that the legislature intended to give them at the time of enactment, and new meanings may not be poured into them. See, e.g., In re Generic Investigation into Cable Television Services in State of N.M., 103 N.M. 345, 348, 707 P.2d 1155, 1158 (1985) (“In construing the New Mexico Constitution, this Court must ascertain the intent and objectives of the framers. . . . [A] court may not broaden the scope of constitutional provisions beyond their intent . .. .”) (internal citations omitted); see also Montoya v. City of Albuquerque, 82 N.M. 90, 94, 476 P.2d 60, 64 (1970) (“A statute must be interpreted as the Legislature understood it at the time it was enacted”).

But New Mexico’s marriage statutes were enacted in the 19th Century, and the most recent state constitutional provision on which petitioners rely was enacted in the early 1970s. I haven’t done any historical investigation myself, but it seems unlikely that the framers of the New Mexico Constitution, or 19th-Century legislators, had same-sex marriage in mind when these various provisions were enacted.

Thus, if I had to venture a guess (a very dangerous game, I know), I would expect the Supreme Court to deny this petition to allow the issue of same-sex marriage to be fully litigated in the lower courts, and to allow the Legislature another opportunity to arrive at a solution through the democratic process.

If you have any comments about this case, or think I’ve missed something, or disagree with me, please feel free to leave a comment.  All civil comments are welcome!