Same Sex Marriage invokes Constitutional Issues

Once again New Mexico has made the news.  This time it arises from the Santa Fe Mayor encouraging gay marriage by urging county clerks to issue marriage license to same sex couples.  What is the basis for this argument?  The law is silent on whether gay marriage is allowed.  The Mayor and the City Attorney argue that our marriage laws are gender neutral thereby allowing marriage of same sex couples.

Most of us are very familiar with the standard arguments for and against gay marriage.  We hear the talking heads on both sides argue the emotion of the issue very eloquently.  We are certainly aware of the biblical prohibitions about such activities, however, there is more at stake than this single issue of gay marriage.  While the issue itself is very troubling to those of us who believe that marriage is between a man and a woman, there are underlying principles that are being tested by this debate.  Principles that impact on the structure of our legal system and Republic. Principles that seem to be missed by both sides of the argument, but which are at the very heart of the debate.  Let’s analyze these principles.

1.  The Law is Silent on the issue of gender related marriage

This is the main issue the Santa Fe Mayor is invoking of why gay marriage is permissible.  I saw where the City Attorney too indicated that he analyzed the law and it was the City Attorney’s opinion that the law did not prohibit same sex marriage.  An honest analysis of our Domestic Affairs statutes indicate otherwise.  New Mexico Statutes Annotated (NMSA) indicates that “Marriage is
contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.” 40-1-1.  While this statute on its face is gender neutral, a reading of the entire chapter clearly states otherwise.  There are numerous statutory provisions under Chapter 40 (Domestic Affairs) of the New Mexico Statutes Annotated that demonstrate that the legislative intent was for marriage to be between a man and a woman, a husband and a wife.  Here are a few examples:
NMSA 40-2-1:   Husband and wife contract toward each other obligations of mutual respect, fidelity and support.

NMSA 40-2-2:  Either husband or wife may enter into any engagement or transaction with the other . . .

NMSA 40-2-3:    It shall not be necessary in any case for the husband to join with the wife when she executes a power of attorney for herself; nor shall it be necessary for the wife to join with the husband when he executes a power of attorney for himself.

NMSA 40-2-8:  A husband and wife cannot by any contract with each other alter their legal relations, except of their property, and except that they may agree in writing, to an immediate separation, and may make provisions for the support of either of them and of their children during their separation.

NMSA 40-3-1:  The property rights of husband and wife are governed by this chapter unless there is a marriage settlement containing stipulations contrary thereto.

Time and space prevent me from naming more.  The point is that our legislature, the proper branch that makes our laws, clearly and unequivocally defined marriage as between a husband and a wife.  A search of any dictionary and case law always refers to a husband as the male partner in a marriage.  Whereas, the wife is always referred to as the female partner in the marriage.

The Santa Fe Mayor’s problem is one of logic.  One cannot divorce (pun intended) various sections of the Domestic Affairs Act from the rest of the Act. If one were to accept the Santa Fe Mayor’s logic then the entire Domestic Affairs Act would have to be rewritten (by the legislature and not a city’s mayor).  This is because our legislature has clearly identified throughout this Act that marriage is between a husband and wife, a male and a female. Any other outcome would render most of the Domestic Affairs Act null and void.  Take the above mentioned examples as just a few of the provisions that only apply to husbands and wives.  Does that mean we carve out different exceptions for same sex couples?

2.  The Current dispute violates the Separation of Powers Doctrine

I do not believe anyone would argue the fact that our legislature did not intend for “everyone” to have the right to marriage.  We see this in NMSA 40-1-6 where the statute indicates “No person authorized by the laws of this state to celebrate marriages . . .”  This language clearly shows that there persons who are not authorized to celebrate marriage.  The obvious examples are minors, incompetent individuals, incestuous marriages and those already married.  There are specific statutes pertaining to these classes of persons.  Moreover, there is no statute in NM law that grants the right to same sex marriage.  Under NM law, marriage is an act that requires proper legal protocol. NMSA 40-1-10 requires the issuance of a license.  Thus, marriage is a creation of the state.  Forget, for a moment, about all the historical evidence about marriage, the bottom line is that the act of marrying requires the state’s consent.  How is that consent granted?  Through the statutory framework that “created” marriage as a state act in the first place.  How is that statutory framework created?  Through the proper legislative process of open debate by and through the consent of the governed, the legislative body.  This is the foundation of representative government.  Here, however, we have one mayor on the city level thwarting the legislative process and working to undermine the separation of powers.  He promotes the existence of gay marriage without any legislative authority.  Instead he seeks to undermine the legislative authority by creating a right that is nonexistent anywhere in NM law.  Just as state recognized heterosexual marriage was not created without statutory constructs, so too gay marriage, to be recognized, requires proper state recognition through the legislative process.  Currently, gay marriage is a figment of his imagination.  It is a bit scary to think that one person would try and subvert the proper legislative channels in order to promote his own personal agenda.  Sounds like the Santa Fe Mayor should retake 8th grade civics.

3.  The tyranny of the Judiciary?

Finally, rumblings are going on as I write regarding how this matter will be addressed by the court system.

“You seem to consider the judges the ultimate arbiters of all constitutional questions;  a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”  Letter from Thomas Jefferson to Jarvis September 1820.

The problem isn’t necessarily with the submission of questions to the court system on laws passed by the legislature, but the submission of questions to the court system on laws not even in existence.  It becomes very confounding how quickly we seek the activism of the judiciary in matters that are not even law.  The real ploy here is to circumvent the legislative process in an effort to find sympathetic judges who choose to legislate from the bench.  As such, it makes our election of judges in NM something that we all should take a bit more seriously.  Same sex marriage has been presented to the people, through the legislature, for several years.  Each year, the matter has been defeated.  Let’s not allow those who cannot legally change the law, try and create the law through the judiciary.

In sum, the recent headlines created by the Santa Fe Mayor opens up a deeper discussion of our fundamental understanding of the rule of law and our republican form of government.  While the issue is sensationalized by both sides, let us pray that the rule of law will prevail and that we the people still remain master over our own government.

David A. Standridge