A proactive clerk in Dona Ana County, New Mexico began issuing same-sex marriage licenses last August in the wake of the SCOTUS' same-sex marriage decision in United States v Windsor.  Other county clerks began doing the same thing, attracting the attention of the New Mexico Association of Counties after a few hundred marriage licenses had been voluntarily issued to gay couples.

In some New Mexican counties, clerks were court-ordered by county circuit judges to issue the same-gender marriage licenses while in still other counties, the clerks rejected marriage license applications from same-gender couples. Uncertainty in the law arose relative to the marriage issue in this state.  One of the lawsuits swiftly made its way through the NM courts.

Last week's case making New Mexico the 17th state in the Union to officially recognize same-sex marriage, Griego vs New Mexico, holds that although state marriage laws do not expressly prohibit same-sex marriage, taken as a whole, they have that effect.  Therefore, New Mexican marriage laws, being subjected to the court's "heightened scrutiny" were found to violate the Equal Protection clause of the NM constitution.

The Supreme Court of New Mexico held:

We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.  Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified.  Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution.  We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law.

 To accomplish this, the NM Supreme Court exercised its power of superintending control, expressly granted by the state  constitution, over all inferior [trial] courts and, by extension, the county clerks where state marriage licenses are issued.  Some legal critics and state legislative opponents will see this as the poisonous fruits of an activist court.

We here at the Law Blogger have been tracking this civil rights movement since the early-days of the Perry case in California back in 2009.  What we are noticing now is the significantly increased and fervent pace of these decisions across the nation.

Most of the legal pundits, commenting last summer as the nation awaited the SCOTUS decisions in Perry and Windsor, assumed that same-sex marriage would evolve slowly like the prior civil rights struggles for racial and gender equality.  As we can see from the brisk state-by-state output, the pace of change is quickening.

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Here come the lawsuits.  In the wake of the SCOTUS ruling in June striking down same-sex marriage bans and granting federal benefits to same-sex married couples, many couples are finding their way to court houses across the country.

Most states that have what could be called "gay-friendly" legislatures, something that we would expect changes over time, have already passed laws specifically granting gay couples the right to marry in a dozen states.  So the strategy among proponents of the notion of gay marriage has shifted from the state capitols to the county courthouses.

In Santa Fe County, NM, for example, a family court judge ordered the county clerk's office to issue marriage licenses to couples without regard to their gender or sexual orientation, ruling within a brief hearing that doing so was now unconstitutional.  At the time of this blog post, 7 counties in New Mexico have followed suit.

In neighboring Texas, the Supreme Court has scheduled oral arguments for November in two cases where same-sex married couples were granted divorces from Texas county family courts.  The Texas Attorney General has intervened in the divorce proceedings, asserting the divorces issued by the family courts are invalid because they implicitly recognize same-sex marriage; something proscribed by Texas law.

Cases in Tennessee and Kentucky are also percolating through the state courts, testing state laws proscribing same-sex marriage.  In one of the several cases pending in Kentucky, one-half of a same-sex married couple is on trial for murder and the issue in the court is whether his "better-half" can be compelled to testify, or whether he should be granted spousal immunity.

In another high-profile case from Franklin County, Kentucky, a same-sex couple filed suit against the Governor on grounds that Kentucky's outright constitutional ban of same-sex marriages violates the Equal Protection clauses of the U.S. and Kentucky constitutions.  This is the same issue that was decided in California in the SCOTUS Windsor case.

Currently, there are too many same-sex marriage cases to track unless you are a law professor or law student writing a law review article on the subject.  Unlike the SCOTUS' 1973 Roe v Wade decision, considered the height of judicial activism, which created a sweeping constitutional ban on anti-abortion legislation, last term's same-sex marriage decision adopted a state-by-state approach.

While the momentum toward recognition of same-sex marriage as a civil right has gained steam since we here at the Law Blogger picked-up on the issue back in 2009, it will take at least a quarter century for the current dust to settle.  At least that is our prediction.

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