Defining Marriage

Battle Over Same-Sex Marriage Licenses Heads Toward New Mexico Court

Tim McGivern
14 min read
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Sometime back in the late 19th century, territorial governor Lew Wallace made what for some might seem like a timeless observation. “All calculations based on our experiences elsewhere fail in New Mexico,” he wrote.

Well, we can finally rest assured that Republican presidential aspirant Pat Buchanan's so-called culture war (he spoke against gay rights specifically in his infamous “war for the soul of America” speech at the 1992 GOP convention) now applies to our land of enchantment. We are, like it or not, at the forefront when it comes to addressing the issue of same-sex marriage.

Following the issuance of marriage licenses to more than 60 same-sex couples on Feb. 20, Sandoval County Clerk Victoria Dunlap ignited an election year imbroglio that has politicians—even more than usual—choosing their words carefully. For example, Gov. Bill Richardson criticized President Bush's call for a constitutional amendment banning gay marriage, saying it's a state issue but also an easy way for Bush to distract the nation's attention from more pressing matters such as the economy and national security. Meanwhile, Gov. Richardson does not support gay marriage, preferring instead to support “all kinds of protections” for folks engaged in a “civil union.”

Within hours after those Sandoval County marriage licenses were issued, Attorney General Patricia Madrid, upon request from state Senators Steve Komadina (R-Corrales) and Tim Jennings (D-Roswell), issued an advisory letter proclaiming “no county clerk should issue a marriage license to same-sex couples because those licenses would be invalid under current law.”

In her letter, Madrid cited pertinent state laws—such as language on a marriage application, property rights of married persons and evidentiary privilege between spouses—that explicitly define husband as a man and wife as a woman and concluded: “Thus, it appears that the present policy of New Mexico is to limit marriage to a man and a woman.”

However, Madrid's opinion also states that New Mexico's marriage laws may be subject to revision by the Legislature or declared unconstitutional by the judicial process.

“It really is up in the air,” said Linda Siegle, a lobbyist for the Coalition for Equality, a statewide organization that advocates for gay, lesbian and transgender civil rights. “The same-sex couples' position is they were legally married. An advisory letter from the AG is not an annulment. You have to go to court to resolve that.”

Komadina asked Madrid for the opinion because he believes the licenses were illegally issued. He said marriage is only legal between a man and a woman in order to “propagate the species and raise those children.” He opposes same-sex marriage and believes that homosexuality is a matter of personal choice. “You can create a straight or gay person based upon their experiences in life,” said Komadina, a Mormon Bishop, gynecologist and Herbalife spokesman. “Homosexuality is a learned behavior—I'd be happy to debate that with anybody.”

How it Began

According to news reports, Dunlap received a call in the days preceding Feb. 20 from a same-sex couple inquiring if the clerk's office performed marriage ceremonies. When the office said no, the caller asked if the clerk issued same-sex marriage licenses. Then Sandoval County Attorney David Mathews allegedly admonished Dunlap not to deny the request while at the same time directing her to consult with the state Attorney General's Office. Local news reporters caught wind of the story and announced that same-sex marriage licenses were available, which led couples to pack the halls of the Bernalillo courthouse up until Madrid's advisory was issued.

Dunlap, a Republican, later acknowledged that she personally believed gay marriage was an equal rights issue that needed to be clarified due to the uncertain constitutional interpretation regarding equal protection for all people.

Last week attorney Paul Becht, a former Republican state senator from Albuquerque, sent a faxed letter to Dunlap saying he will file some type of lawsuit against the Sandoval County Clerk if the licenses aren't nullified.

On March 4, Gayland Bryant, a Sandoval County spokesman, told the Alibi the county attorney has advised the clerk not to do anything about Becht's letter. “The county cannot null and void a marriage license,” said Bryant. “It will require action at the state level or through the courts.”

Becht acknowledged that there is no state statute that says marriage is only between a man and a woman. “But we have a series of laws pertaining to a male-female kind of thing when it comes to husband and wife,” he said. “That was set forth by the Legislature—how the marriage license would read.”

For Becht, a fundamentalist Christian who told the Alibi he was acting as legal counsel for the evangelical Christian group Alliance Defense Fund, two issues coalesce in his argument against same-sex marriage: state law and family values.

From the family values platform, Becht says marriage is an institution created by God for the sole purpose of populating the earth, raising children and teaching them the moral standards necessary to be law-abiding and virtuous so as to get to Heaven.

From his personal recollection of U.S. history, he said the federal government determined that promoting increased population was good for the economy and protection of the nation's borders. Therefore, the purpose of governmental sanction of marriage is for the purpose of procreation, he said.

“I realize there are people who have lived together for years and don't get social and economic advantages such as health care benefits,” said Becht. “I can recognize where you have a couple of women living together and one works, the other doesn't, I understand that. I don't have a problem personally with that partner getting the same health benefits as if they were married. The problem I have with same-sex marriage is it denigrates the whole idea of marriage. Living together and having sex together is not the definition of marriage.”

Of the half-dozen same-sex couples I interviewed, all would agree with that last sentence. So would Virginia Dugan, president of the New Mexico Women's Bar Association, who has written legal agreements for same-sex couples pertaining to property rights, child custody, inheritance and so on. However, there are numerous legal rights, such as tax-filing status, that married couples automatically have that Dugan said, naturally, same-sex couples in a long-term relationship would want. “Our state law has to clarify who the marriage contract is between,” said Dugan. “These people have a license. Is it invalid? That's going to be for the court to decide. This issue is all over the place right now.”

Heart of the Matter

Gregory Gomes and Craig Holmes had been planning a trip to Massachusetts to be married when they read the morning daily on Feb. 20 and discovered they could save on travel expenses by taking a short drive from Albuquerque to Bernalillo. The couple have been domestic partners for 12 years and Gomes said they still feel the sting of living through the politics of being gay during the AIDS crisis in the '80s. After witnessing a segment of America that was less than sympathetic to their dying friends, Gomes said he came to realize that the only route to equality is marriage because of the way so many laws are structured pertaining to health care, tax-filing, retirement, social security, deposition of assets upon death and other legal matters.

Gomes, however, does not pretend that being denied these benefits is what the rumpus is all about. There is another issue closer to the heart of the matter.

“What really needs to happen, in terms of laws and legislation, is a separation between the religious and spiritual marriage and the civil legal marriage.”

Gomes was raised Catholic and says his mother is “still very Catholic,” adding that “it's hard to feel an affinity for a church that rejects me.”

When Rev. David Gant arrived at the Bernalillo Courthouse on Feb. 20 wearing his collar, he said the couples waiting in line looked at him cautiously, wondering if he was there to scorn or support. Rev. Gant, of the Metropolitan Community Church of Albuquerque, a Protestant-affiliated church that supports homosexuality, wound up conducting marriage ceremonies on the sidewalk and in the nearby grass for several hours that day.

“Love is love and God is love,” said Gant. “There's been a lot of talk about same-sex marriage destroying sanctity of marriage. I would say divorce destroys the sanctity of marriage.”

Hypocrisy and Divorce

Gretchen Walther, along with her father, operates Walther Family Law practice in Albuquerque, specializing in divorce proceedings. While Attorney General Madrid's advisory letter clearly defines same-sex marriage licenses as invalid, Walther said that does not mean a judge is obligated to make the same ruling.

“The judge would have to follow the state constitution and the state statute doesn't say anything regarding same-sex marriage,” said Walther. “It doesn't say people have to be the same sex.”

The issue is both complex and scholarly, because on one hand, judges can make a law validating a same-sex marriage license, while on the other, the Legislature can make a law nullifying it. Or vice versa. In the legislative process, naturally, there is intense lobbying and there are always lawmakers intellectually deficient when it comes to analyzing bills. In a court you have a unique case analyzed by a seasoned judicial panel familiar with constitutional law and perhaps that's why Gov. Bill Richardson, while saying he opposes same sex marriage, has also suggested it's best for the courts to make the final decision. (Then again, whenever a politician speaks, a public opinion poll is usually nearby helping to shape the rhetoric.)

As someone who makes her livelihood as a divorce attorney and not a politician, Walther was quick to offer her opinion on the so-called sanctity of marriage. “Even calling it an institution implies marriage is a great thing, but heterosexual people are really making a mockery of marriage, considering divorce rates are around 50 percent nationally. That's kind of what sticks in my craw.”

Legal argument aside, what then is the true definition of marriage American style? Mock-marriage shows are one of the hottest commodities on prime-time television, which is perhaps the clearest representation of mainstream American taste and, yes, values. The premise for marriage as entertainment most often sold by America's giant media conglomerates to viewers and corporate advertisers is based on dishonesty, lechery and greed, exemplified by the big fat fiancé and Joe Millionaire characters, to name two. Then you have Bill Clinton signing a Defense of Marriage Act in 1996 heralding the sanctity of marriage between a man and woman prior to cheating on his wife with an intern. Not to be outdone, one of the most vociferous House Republicans, Henry Hyde, who led the charge for Clinton's removal from office two years later, also had to admit he was a serial philanderer, saying cheating on his wife was owed to “youthful indiscretion” during his—get this—40s. These are points not lost on Walther, who says she supports the rights of same-sex couples to legally wed.

“If gay people have a genuine level of respect and commitment for each other, then that is what is valuable,” said Walther. “That's the message we ought to give to society—that people committed to each other should be able to benefit from that.”

Law, Religion and Philosophy

According to their website, The Alliance Defense Fund, “working with our allies, as well as experienced litigators, directly litigates some carefully chosen, strategic cases for a unique purpose: to train newly licensed attorneys in the fine art of litigating—and winning—legal matters protecting religious freedom, the sanctity of human life, and traditional family values.”

The organization's beliefs are itemized to include God's definition of marriage as one man married to one woman; that this has been both the legal and traditional understanding of a marriage for millennia, since Eden.

“Sadly, many radical activist groups in the U.S. are attempting to twist the law to change the definition of the family to include same-sex ’marriage,' polygamy and other structures,” the website states. “These groups scoff at the idea that there is any set of values or beliefs that is generally good for families or culture.”

Interestingly, in addition to representing right-wing evangelical groups such as Focus on the Family and Campus Crusade for Christ, one of the founders of ADF is Larry Burkett of Crown Financial Ministries, which is a key benefactor in the Bush administration's faith-based initiatives program. (For example, Crown's homepage can be accessed directly from the federal government's Department of Housing and Urban Development website, under the heading: “Homeownership requires a planned, disciplined course of financial action … visit these websites to learn more.” Clicking on the link calls up only Crown Financial Ministries.)

The Alliance Defense Fund has also filed a lawsuit in San Francisco against the mayor for issuing thousands of same-sex marriage licenses earlier this year.

In New Mexico, Paul Becht said his legal resolve is to take his opposition to same-sex marriage to the state courts and follow the appeal process to the state supreme court, if necessary. He steadfastly maintains that we are all God's children and entitled to the same basic civil liberties and rights, except for gay marriage. “I don't bear these people any ill-will whatsoever,” said Becht. “Being a lawyer, I'm dealing with all kinds of sinners.”

By Becht's estimation, the connection between lawlessness and godlessness in America can be traced directly to academics who teach the existential philosophies of Nietzsche, Heidegger and Sartre in American universities. In contrast, federal law and evangelical Christian beliefs are more closely aligned, because the crafters of the U.S. Constitution, the founding fathers, “were essentially all Christian,” Becht said.

“What is going on in society today is disrespect for the law,” he said. “It's a form of nihilism we are falling into. In a society in which people should govern themselves, how can they do that, if they do not have an agreement as to what the standards of conduct are. I suggest to you now, there is not much agreement. That's why we have this cultural war.”

How then will this perceived clash of cultural values among America's diverse population be resolved? “I'm pessimistic,” said Becht. “Somebody has to come in and set down order out of chaos, and when that happens our experiment in self-governance will have failed and our rights and liberties will be thrown out with the dishwater. That's where we're headed.”

Rev. David Gant and Gregory Gomes, having endured homophobia for decades, are not as fatalistic. Rev. Gant said God charged him to talk about homosexuality openly, and he has proudly and confidently answered the call. As a social justice issue he said the gospel of Jesus called him to talk about homosexuality as well. Still, Rev. Gant acknowledged that same sex couples are afraid to talk about their place in society, because there is an unspoken threat to their well being.

“If you are told for years and years that your relationship is wrong, you learn not to talk about it,” said Gant. “To be all of a sudden out and open, that's pretty threatening on a lot of levels—personally, professionally, socially.”

Gomes said he was met with derision and disappointment from his family when he confronted them with his sexuality years ago. He said he understood the perspective relatives were coming from and felt sad but not angry.

“It was like, I love you, but I don't like you,” said Gomes. “It didn't take long to change though and it's not like that at all anymore,” adding: “I'm optimistic about New Mexico.”

The legal right for same-sex couples to obtain a New Mexico marriage license will very likely come before the state Legislature or the state Supreme Court, or both, in the near future. From a constitutional standpoint, the issue, complex as it is culturally, might be simplified by one question: Do the provisions in the constitution that require equal protection of the law to all members of society include homosexuals who pursue the same legal marriage rights as heterosexuals? Following the issuance of some 64 marriage licenses to same-sex couples in Sandoval County, the answer in New Mexico so far seems to be: We don't know.

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