Marriage, not to be confused with Holy Matrimony, is a legal contract requiring a license issued by the state. As such, it is inherently unconstitutional to deny same-sex couples the right to enter into such a contract that is afforded every other consenting couple of legal age.
City Attorney Geno Zamora says in a three-page opinion that New Mexico’s statutory definition of marriage is gender-neutral and doesn’t define marriage as between a man and a woman. The law instead emphasizes the consent of the two people who want to wed, saying 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,” Zamora noted.
Zamora also notes that New Mexico already recognizes marriages from other states, “without regard to the sex of the parties,” and that the state Constitution requires equal treatment regardless of gender. And while New Mexico’s statutory marriage application form is “described in terms of male and female applicants,” the form is trumped by the Constitution’s Equal Rights Amendment and the specific language of the marriage statute, “which does not require that the applicants be of the opposite sex,” Zamora’s opinion says.
The opinion says same-sex couples who have a marriage application denied should petition in district court for a writ directing a county clerk to issue a license “because the gender of the applicants is not a statutory ground for denial.