New Mexico's Gay Rights Fight Wins Two Victories in a Week

The state-by-state push for same-sex marriage rights focused in on New Mexico this week. 

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The state-by-state push for same-sex marriage rights focused in on New Mexico this week after New Mexico's supreme court ruled that for-profit businesses can't discriminate against wedding and commitment ceremonies for same-sex couples. The ruling comes just one day after a New Mexico county began issuing marriage licences to same-sex couples, arguing that the state's law doesn't actually say anything about prohibiting gay marriage anyway.

New Mexico's marriage laws are uniquely ambiguous, making the state something of a weird case study for the gay marriage battle in the U.S.: the state has no laws on the books specifically addressing the issue of same-sex marriage, nor does it have a provision allowing or banning civil unions or similar legal statuses. Instead, the state tentatively recognizes same-sex marriages from other states while functioning as if state law prohibits gay marriage. Two attempts to get related measures on the state's November 2014 ballot — one to legalize same-sex marriages, and the other to ban them — failed to make it out of the state's legislature. The city of Santa Fe, meanwhile, decided this year that the state's laws already legalize same-sex marriage. Plus, a series of lawsuits have challenged the state's interpretation of its current laws as an effective ban on gay marriage prompting New Mexico's Attorney General Gary King to announce that he wouldn't defend the state against them. King believes the state's equal protection laws render those bans unconstitutional.

Thursday's court decision centers around the New Mexico-based Elane Photography, which refused to photograph the commitment ceremony of a same-sex couple in the state. Because the company's main business comes from weddings, it's considered a public accommodation under state law — which the company doesn't contest. When the couple contacted the company once more (this time hiding the fact that they were inquiring about a same-sex ceremony), Elane Photography was eager for their business. That was enough for the couple to file a discrimination complaint under the New Mexico Human Rights Act. That law prohibits businesses who provide services to the public from discriminating against protected groups of people.

The company argued that because they'd photograph a gay person, but not anything depicting or promoting the idea of a same-sex weddings, the law didn't apply. Here's Justice Edward L. Chavez's opinion:

If a restaurant offers a full menu to male customers, it may not refuse to serve entrees to women, even if it will serve them appetizers. The NMHRA does not permit businesses to offer a “limited menu” of goods or services to customers on the basis of a status that fits within oneof the protected categories. ... it does not help Elane Photography to argue that it would haveturned away heterosexual polygamous weddings or heterosexual persons pretending to have a same-sex wedding. Those situations are not at issue here, and, if anything, these arguments support a finding that Elane Photography intended to discriminate against Willock based on her same-sex sexual orientation.

In a concurring opinion, justice Richard C. Bosson added the following:

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world.

Meanwhile, Doña Ana County clerk Lynn Ellins issued marriage licences to same-sex couples for the second day on Thursday, after he decided that the state's laws provided no actual prohibition against it. The "state's marriage statutes are gender neutral and do not expressly prohibit Dona Ana County from issuing marriage licenses to same-gender couples," he explained. On Wednesday, the clerk issued about 40 licenses, with even more handed out on Thursday. Ellins is the first clerk to do so since 2004. But those licenses, issued in Sandoval County, were later invalidated. But King indicated that he had no plans to challenge those licences any time soon, cautioning they could still be invalidated by a future court decision.

This article is from the archive of our partner The Wire.