STATE OF NEW MEXICO COUNTY or BERNALILLO THE secono JUDICIAL DISTRICT COURT FILED IN Ill"! DFFICE 5; NO: 202 CV 2013 2757 AUG 23 2013 Rosa GRIEGO KIMBERLY KIEL I 4 Le} a cteai oisraicr COURT Plaintiffs, V. MAGGIE TOULOUSE OLIVER, et al., Defendants. DECLARATORY JUDGMENT, INJUNCTION, AND PEREMPTORY WRIT OF MANDAMUS THIS MATTER having come before the Court upon the Second Amended Complaint for Declaratory and lnjunctiye Relief; the Court haying reviewed the entire file; the Court haying convened a hearing in open Court on August 26, 2013; and the Court being sufficiently advised: THE COURT FINDS: I. There is jurisdiction over the parties and the subject matter. 2. The material issues of fact herein are not in dispute. Plaintiffs are same sex couples who have shared committed relationships. Having made these deep personal and social commitments, they wish to enter into the state-sanctioned contract of marriage. Defendants are, respectively, the County Clerks of Bemalillo County, New Mexico, and Santa Fe County, New Mexico. The Court further adopts the parties' stipulated facts as set forth in open court. 3. In order to enter into the state-sanctioned contract of marriage, any couple must obtain a Marriage License from a county clerk. Sec. 40-1-1, at seq, NMSA. Defendants are charged with the clear and uriambiguous duty to provide Marriage Licenses to qualified couples upon application. Sec. 41-1-10, NMSA Plaintiffs, and those similarly situated throughout New Mexico, are otherwise qualified to obtain a marriage license and to enter into the contract of marriage [Section 40-1-1, 40-1-6, and 40-1-7, and have either already been denied a Marriage License by Defendants or who will, to a certainty, be denied a Marriage License by Defendants on the basis of their same sex orientation. 4. An "actual controversy" exists between the parties. Section 44-6-1, er seg., NMSA. 5. A specific prohibition of same sex marriage does not exist in Section 40-1-1 through 40-l-20, NMSA, although the statutory scheme does specifically prohibit marriage between minors without consent of their parents or court order, incestuous marriage, and marriage between those lacking contractual capacity. 6. Section 40-1-10, NMSA, establishes the necessity for a marriage license and states: Each couple desiring to marry in New Mexico shall obtain a license from a county clerk. .. (emphasis added) but these statutes do not define or limit the definition of ''couple'' to a heterosexual pair of contractually capable people nor exclude those of same sex orientation from that term. 7. It is arguable that the use of both gender neutral and gender specific terms in our laws on "Dornestic Affairs," Section through 40-15-4 NMSA supports the conclusion that New Mexico statutes do not allow same sex marriages; Shields Modigorr, 7'83 270 Sup. Ct. 2004)', Lewis Harris, 908 A.2d 196 (NJ 2006),' Goodridge Dept. ofPuo. Health, 798 941 (Mass. 2003). And it is also arguable that our Territorial Legislature did not even consider same sex marriage when it established the statutory scheme in 1862. From this, some might argue that Defendants are prohibited from issuing Marriage Licenses to same sex couples or. at least, that there is no clear, non-discretionary duty to do so. See. Store of New Mexico 's Response to Verified Petirionfor Writ ofMondomns Supreme Court 3 422?. 8. It is, however, beyond argument that the People of the State of New Mexico considered, and spoke clearly to ensure "equality of rights under the law" in 1972 by adoption of Article II. Section 18, Constitution ofNew Mexico. Article II, Section 18 provides: No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Eqtittlity of rights under the low shall not be denied on ctccottrt! ofthe sex person. emphasis added) 9. Accordingly, whether or not our statutory scheme in Section 40-14. at sea, does, or does not, allow same sex marriage is of little consequence to the outcome of this litigation because the voice of New Mexicans in adopting Art. ll. Section 18 in 1972 clearly prohibits such discrimination against same sex applicants and the Defendants' clear, non-discretionary duty to issue a license to "each couple" otherwise qualified stands clearly and inexorably through all the rhetoric. 10. conditions of sexual orientation on one's right to enter ciyil contracts such as marriage is a violation of Article II, Section 18's mandate that "equality of rights shall not be denied on account of the sex of any person." ll. conditions of sexual orientation on one's right to enter civil contracts such as marriage is a violation of Article II, Sections 13's mandate that "no person shall be deprived of life. liberty or property without due process oflaw; nor shall any person be denied equal protection of the laws." 12. Whether based in statute, or Constitutional protections, Defendants have a non-discretionary duty to issue a Marriage License to "each couple" otherwise qualified upon application for same and no valid excuse for not perforating that duty has been asserted. l3. Gay and Lesbian citizens of New Mexico have endured a long history of discrimination. SE, Breen v. Carlsbad Municipal Schools, 2005 NMSC 028. Denial of the right to marry continues this unfortunate, intolerable pattern and establishes irreparable injury on Plaintiffs' part. Loving v. Virginia. 388 US. (1967). US. v. Windsor, (US. Supreme Court June 26 2013; gig, 12-3 07' 6i3T'pdf.) 14. There is a substantial public interest in vindicating the rights of all citizens under the law and in preventing the ongoing violation of our constitutional rights. Awoo' v. Ziriax, 670 F.3d 1 11 (lflm Cir. 2012); Herrera v. Santa Fe Pnbt'i'c Schools, 792 F. Supp.2d 11744 (DC 2011). There is no benefit to the parties or the public interest in having this matter progress through a path of litigation while basic constitutional rights are compromised or denied on a daily basis. Accordingly, the Court finds Plaintiffs have established both that they face imminent and irreparable injury and lack a speedy or adequate remedy at law. 15. The grant of the relief sought by Plaintiffs in this matter would have little or no impact upon Defendants Oliver andfor Salazar. They would still function in accordance with their duties and the relief sought would have little, or no, administrative or economic impact on the operation of their offices. l6. For the reasons set forth above, the operative facts being undisputed, Plaintiffs have demonstrated a significant likelihood of success on the merits of their claim. 17'. To the extent not previously set forth. the allegations of the Second Amended Complaint filed August 16, 2013, are incorporated herein. A true copy thereof is attached hereto. 18. It is appropriate to enjoin and restrain Defendants from refusing to issue Marriage Licenses to same sex couples on the basis of their sexual orientation or gender. 19. It is appropriate to issue this Peremptory Writ of Mandamus requiring Defendants, and each of them, to perform their non-discretionary statutory duty to issue a Marriage License to "each couple" otherwise qualified who applies for same without regard to their sexual orientation or gender. WHEREFORE, it is Ordered: . LJJ Declaratory Judgment Section 40-l~l, at seq, NMSA does not preclude nor prohibit issuance of a Marriage License to otherwise qualified couples on the basis of sexual orientation or the gender of its members. To the extent Section 40-1-1, NMSA, may be read to prohibit issuance of a Marriage License to otherwise qualified same sex couples, those prohibitions are unconstitutional and unenforceable under Article II, Section 18, Constitution of New Mexico. Writ of Mandamus Immediately upon receipt of this Writ, Defendants Oliver and Salazar, as the County Clerks of Bernalillo County and Santa Fe County, New Mexico. respectively, shall comply with and shall perform their non-discretionary statutory duty to issue a Marriage License upon application from "each couple" otherwise qualified without regard to the couple's sexual orientation or the gender of its members. Injunctive Relief 4. Defendants Oliver and Salazar, and each of them, are hereby enjoined and restrained from refusing to issue a Marriage License to "each couple" otherwise qualified who applies for same on the basis of the couple's sexual orientation or the gender of its members. HON. ALAN M. MALOTT Dated: Copies of the foregoing were hand delivered to all counsel of record in open court on August 26. 2013.