New Mexico: The New Gay Marriage Battleground As Judge Orders Issuance of Marriage Licenses

Unlike many states in America, the state of New Mexico never enacted explicit gay marriage bans through either statutes or an anti-gay amendment to the New Mexico Constitution.   As a result in the wake of the U. S. Supreme Court ruling in United States v. Windsor - which among other things correctly identified anti-gay animus as the real motivation behind DOMA - several counties in New Mexico have started issuing marriage licenses to same sex couples.  And as reported previously on this blog, the New Mexico attorney general has announced that he will not oppose the issuance of such licenses.  To further confuse the mix of legal directives, now a judge has ordered county clerks to proceed with the issuance of marriage licenses to same sex couples.  Here are highlights from BuzzFeed:

A New Mexico judge has ordered the county clerks of Bernalillo and Sante Fe counties to begin issuing marriage licenses to same-sex couples who apply and are otherwise qualified.

Because the clerk in Santa Fe County already began issuing licenses last week, as did the clerk of Dona Ana County, the addition of Bernalillo County into the mix makes a third county in the state where licenses will be issued to same-sex couples.

Issuing a peremptory writ of mandamus, Judge Alan Malott found Monday that the couples suing for a right to marry in one of the only states in the nation without either marriage equality or an explicit ban on such marriages have a “significant likelihood of success” on the merits of their lawsuit.   In reading his ruling in open court Monday, Malott said he ordered that:

New Mexico law, Malott found, “does not preclude nor prohibit issuance of a marriage license to otherwise qualified couples on the basis of sexual orientation or the gender of its members.”.

To the extent it is found to do so, “those prohibitions are unconstitutional and unenforceable under” New Mexico’s constitution, he ruled.

Bernalillo County Clerk Maggie Oliver and Santa Fe County Clerk Geraldine Salazar “shall comply with and perform” their duty to issue such licences.
Oliver and Salazar are “enjoined and restrained from refusing to issue” such licenses.

Malott is a district court judge in the Second Judicial District of New Mexico and was appointed to the bench by former Gov. Bill Richardson.

New Mexico Attorney General Gary King, meanwhile, has told that state’s Supreme Court in a third court challenge that any attempt to prohibit same-sex couples from marrying is unconstitutional.

It was not immediately clear who, if anyone, would appeal either last week’s or Monday’s court rulings. The question is relevant because neither ruling creates a final, definitive ruling about state law — a ruling that only could come from the state’s Supreme Court.

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New Mexico Supreme Court: Photographer Cannot Deny Services to Gay Couples

In a unanimous - and completely common sense - opinion, the New Mexico Supreme Court has ruled that a photographer (and by extension, any business that offers services to the general public) cannot refuse to provide goods or services to same sex couples citing "religious belief."  If one is going to market to the public, then one has to provides goods and services to ALL of the public, gays included.  Not surprisingly, the Christofascists who see themselves above the laws governing others are apoplectic that they cannot discriminate at will against those they don't like and screaming that they are being persecuted.  In truth - as is increasingly the case, it is they who are the ones persecuting others.  Metro Weekly looks at the important ruling.  Here are highlights

The New Mexico Supreme Court ruled in a unanimous decision Thursday that a wedding photographer who refused to provide services to a same-sex couple violated the state's Human Rights Act.

"[W]e conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples," the state's highest court ruled. "Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races."

The ruling comes in the case of Elane Photography v. Vanessa Willock, which was filed after Elaine Huguenin, co-owner of Elane Photography in Albuquerque, turned away Vanessa Willock and her partner in 2006 on the grounds that photographing the ceremony would violate her religious beliefs.
An investigation by the state Human Rights Commission that found the company was guilty of discrimination based on sexual orientation was upheld by the New Mexico Court of Appeals in June of 2012.

In its decision today, the New Mexico Supreme Court ruled that the state's Human Rights Act, which was amended in 2003 to add "sexual orientation" as a class of people protected from discrimination, does not violate free speech because it does not compel the photographer to either "speak a government-mandated message or to publish the speech of another."

"The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by states," the decision states. "Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs.

Illustrative of the bullshit coming from the Christofascist is the rant by Bryan Fischer of the hate group, American Family Association, who says the ruling is tantamount to the Jim Crow laws and that Christians are the "new blacks."  Right Wing Watch reports on Fischer's disingenuous screed:

Bryan Fischer is incensed at the New Mexico Supreme Court’s unanimous decision that a wedding photography business violated the state’s anti-discrimination law by refusing its services to a same-sex couple. The American Family Association spokesman called on the business, and others, to file countersuits and “fight fire with fire” by alleging that preventing them from discriminating against customers is religious discrimination.

“Essentially what this court has done and what the Obama administration has done with this abortifacient mandate is that they have turned Christians into Dred Scott,” Fischer claimed, arguing that the New Mexico court “said that Christians have no rights which this court is bound to respect. So to me this looks like Jim Crow is alive and well, we’ve got Jim Crow laws right back in operation, Christians are the new blacks.”

Hate, bigotry, selfishness and, of course endless lies, are the hallmarks of conservative Christians.  Kudos to the New Mexico Supreme Court for making it clear that these vile people are not above the law.

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What Does DOMA's Demise Mean for Gay Couples?

My activist friend John Becker and his husband at the Supreme Court

Many are asking the question of: what does the striking down of DOMA do for married same sex couples?  The answer is that depends on (i) where you live, (ii) where you were married, and (iii) what federal benefits are you talking about.   It will be complicated sorting it all out and, as one Harvard law professor said, much litigation will still need to take place to gain fully equality for all legally married couples.  In the interim, couples will need to see how marriage may benefit them.  More on this issue will follow, but here's a brief overview via the Washington Post:

“The effect is going to vary based on which of the thousand-plus statutes or regulations are affected.”

There are some clear-cut cases. It seems pretty clear that legally married same-sex couples where one member is employed by the federal government are entitled to spousal benefits, just the same as any other married couple. For other legally married couples who don’t live in states where same-sex marriage is recognized, there’s some question as to whether the “state of celebration” or “state of residence” matters. Usually, the former is the standard used, meaning a marriage is valid if it’s valid in the state it was celebrated. That would mean most legally married same-sex couples, regardless of where they got married, are entitled to spousal benefits.

Other areas, like tax law, may require additional rule-making before same-sex couples are treated equally. “Some operate just based on policy, without getting into a regulation or statute, so those can be modified very quickly,” Tara Borelli, an attorney at Lambda Legal who was also a counsel in Golinski. ”Others require rule-making.” And others require statutory changes. Borelli notes that Social Security will probably have to be changed by Congress for same-sex couples to be treated equally.

This does open the door for  bi-national same-sex couples to be treated equally under the law. That means that comprehensive immigration reform probably need not include a provision specifically tailored to making sure bi-national partners of same-sex couples can get visas automatically, the same as opposite-sex partners. As Paul Smith, a partner at Jenner & Block and arguably the leading gay rights litigator in the country (he won Lawrence v. Texas, overturning state bans on gay sex), told me, “My understanding is that the elimination of DOMA would by itself mean that all bi-national married couples would have the same rights, whether same sex or not.”

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Wall Street Sees Opportunity in Demise of DOMA

Hopefully, the U.S. Supreme Court will release it opinion later today striking down DOMA, the Defense of Marriage Act, which codified Christianist anti-gay bigotry into the federal law.   Even if the Court demonstrates a lack of spine and courage and falls to strike down bans on gay marriage nationally, should DOMA fall much will change in the legal landscape for same sex couples, albeit the impact will vary from gay friendly to anti-gay states like Virginia.  Wall Street and financial advising firms somewhat belatedly are recognizing that there is money to be made in courting same sex couples.  Some, like myself, have been working with gay and lesbian couples for a number of years on estate planning issues.  A piece in Politico looks at this recognition of the LGBT market.  Here are excerpts:

The Supreme Court’s long-anticipated ruling on the Defense of Marriage Act will provide some clarity about a fast-growing practice for banks: financial planning for same-sex couples.

The country’s highest court is expected to hand down a landmark opinion as early as Monday on a section of the law that denies married same-sex couples the same federal rights and benefits as married heterosexual couples.

“In terms of financial planning and advisory to the [lesbian, gay, bisexual or transgender] community, it does muddy the waters,” said Eric Berger, a relationship manager and founder of the LGBT Private Banking Initiative at Credit Suisse — one of many banks that began offering specialized financial planning services for the LGBT community in recent years. “The uncertainty causes a bit of paralysis from advisers because on the legal side … basically any planning that you do now, you may have to redo.”

As a number of states across the country have legalized gay marriage, Wall Street has emerged as an ally for gay rights advocates.

Prominent banking executives, including Goldman Sachs CEO Lloyd Blankfein, have spoken out in favor of same-sex marriage and an LGBT-friendly work environment. Large banks — including Goldman, Citigroup and Morgan Stanley — were also among the hundreds of companies that filed a brief earlier this year urging the Supreme Court to overturn DOMA.

And as momentum for gay marriage has gained traction, banks have seized on the changing landscape to attract high net-worth same-sex couples with custom-made financial planning services.

Scott Squillace, the founder of the law firm Squillace & Associates in Boston, which specializes in estate planning for same-sex couples, said he has noticed a marked change among banks across the country over the past decade.  “All of the banks large and small have woken up to the fact that this is a terrific demographic to market to,” said Squillace

A division of Bank of America’s Global Wealth and Investment Management group provides educational tools and materials for LGBT clients on issues ranging from estate, financial and retirement planning. 

Morgan Stanley is also ramping up its services for same-sex couples. It currently offers financial planning seminars to both advisers and clients, and plans to enhance its financial planning desktop software to accommodate wealth management for domestic partners by the end of the summer.

[I]f the Supreme Court overturns Section 3 of DOMA, the decision will present many couples with an important financial decision of their own: to wed or not to wed. From a legal and tax perspective, there is a long checklist of pros and cons.

 For example, there are no gift or estate taxes between spouses, so married couples can give each other an unlimited amount of money while alive or as part of their estate without having to pay Uncle Sam.

Not all of the benefits are necessarily positive. Low-income seniors who are eligible for Medicaid could receive federal assistance for nursing home care, but when considering eligibility, the federal government looks at a married couple’s combined income and assets, making it harder for an individual to qualify.

If the Supreme Court rules DOMA’s Section 3 is unconstitutional, same-sex couples would be poised to eventually receive the same federal marital benefits as opposite-sex couples in states where gay marriage is legal.

I will be speaking at a seminar hosted by Wells Fargo Financial Advisors on July 10th which, you guessed it, targets the LGBT market.

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