Stayce Driskell, Lisa Taj McCellon, and their children, Lilyan, 11, Sophia, 9, and Jackson, 7.
An Open Letter to Bernalillo County Clerk Maggie Toulouse Oliver
And, A Call to Action for Equality Advocates
STAND UP. BE THE CHANGE.
On June 26, 2013, Section 3 of the Defense of Marriage Act (DOMA) defining marriage ) as between a man and woman was declared unconstitutional by the Supreme Court of the United States. According to the majority’s opinion, it was considered “unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”
For your reference:
The Fifth Amendment to the Constitution of the United States of America
“No person shall be…deprived of life, liberty, or property, without due process of law…â€
Just hours later, in a marriage equality action coordinated by GetEQUAL NM, two same-sex couples were denied marriage licenses by Bernalillo County Clerk, Maggie Toulouse Oliver. She and her staff indicated that the reason for her denial of marriage applications to same-sex couples was that the section headings on a sample form of marriage license application provided to County Clerks in NM Statute Annotated 40-1-18 uses the language “male” and “female”.
On March 19, 2013, Santa Fe City Attorney Geno Zamora issued a legal opinion that same-sex marriages are legal in New Mexico and called on County Clerks to issue marriage licenses. A Santa Fe city council resolution supporting same-sex marriage was also announced that day. “Marriage law in New Mexico is gender-neutral and does not define marriage as between a man and a woman,†said Geno Zamora, City Attorney. “New Mexico already recognizes valid marriages performed in other states between same-sex couples; it would violate our state’s constitution to deny equal rights in our own families.â€
In response, Maggie immediately released “a statement on City of Santa Fe resolutionâ€. Maggie’s staff handed copies of this statement to GetEQUAL NM and the couples who were denied marriage licenses while they waited for a face-to-face with Maggie to discuss why they were being denied marriage equality. In it, Maggie asserts:
“While the law may indeed permit marriage between same-sex couples, it also prevents those couples from effectively applying for a marriage license.”
She references the sample marriage license application form provided in NMSA 40-1-18 while making this assertion.
New Mexico is the only state in America whose laws governing and defining marriage are gender neutral.
NMSA 40-1-1 [Marriage is civil contract requiring consent of parties.] 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.
New Mexico marriage laws do not prohibit same-sex marriage:
NMSA 40-1-9 [Prohibited Marriages; Annulment] No marriage between relatives within the prohibited degrees or between or with infants under the prohibited ages, shall be declared void, except by a decree of the district court upon proper proceedings being had therein. A cause of action may be instituted by the minor, by next friend, by either parent or legal guardian of such minor or by the district attorney. In the case of minors, no party to the marriage who may be over the prohibited age shall be allowed to apply for or obtain a decree of the court declaring such marriage void; but such minor may do so, and the court may in its discretion grant alimony until the minor becomes of age or remarries. All children of marriage so declared void as aforesaid shall be deemed and held as legitimate with the right of inheritance from both parents; and also in the case of minors, if the parties should live together until they arrive at the age under which marriage is prohibited [permitted] by statute, then and in that case, such marriage shall be deemed legal and binding.
But what about that NMSA 40-1-18 form? Here’s what New Mexico law ACTUALLY requires regarding forms used to apply for marriage licenses:
“NMSA 40-1-17. [Blank forms required for records.] To insure a uniform system of records of all marriages hereafter contracted, and the better preservation of said record for future reference, the form of application, license and certificate provided herein SHALL BE SUBSTANTIALLY AS FOLLOWS {emphasis added}, each blank to be numbered consecutively corresponding with page number of the record book in the clerk’s office; all such blanks to be provided free of cost by the county for public use.”
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The purpose of the form in NMSA 40-1-18 is clearly stated in NMSA 40-1-17: it’s a sample form provided “to insure a uniform system of records of all marriages hereafter contracted, and the better preservation of said record for future reference.†There are sample forms throughout NM Statutes which are clearly provided to simply illustrate required information that should be gathered, recorded and used in the execution of New Mexico State business. They are included in Statute to save time and effort (aka MONEY) at the State, County or other administrative level. Efficiency is the point of such forms in Statute. NOT INEQUALITY.
So, the solution is obvious. Maggie should change the language on the form that is causing her to deny New Mexicans access to the marriage equality she claims to support and that New Mexico law allows.
Yes, it IS just an issue of semantics; yes, it IS that simple to fix.
It is also true that those “male†and “female†application information section headings used on the sample form in NMSA 40-1-18 have been traditionally reproduced by County Clerks in presumably every county in New Mexico for a very long time. The shocking result of this lazy and unthinking tradition of reproducing that section heading language—or perhaps under the guise of it—is that New Mexico’s County Clerks have spent years illegally perpetrating inequality on New Mexicans that has no basis in law (with the notable exception of Sandoval County in 2004).
In denying same-sex couples marriage licenses solely based on the fact that they were not of the opposite sex, New Mexico’s County Clerks have been illegally taking it upon themselves to interpret New Mexico’s marriage laws to suit their traditions or beliefs or assumptions. There’s no law requiring this qualification of applicants. Yet, you can even find this requirement listed on some New Mexico County Clerk’s marriage license websites! Never mind the insult that every single one of them perpetrates this false requirement to every gay face that comes before them.
In denying same-sex couples marriage licenses solely based on the fact that they were not of the opposite sex, they have been illegally discriminating against New Mexicans by illegally taking it upon themselves to redefine the qualifications of marriage license applicants and/or illegally setting forth and enforcing what’s considered a prohibited marriage. Interpretation of law is NOT the duty or the right of New Mexico’s County Clerks.
In Bernalillo County, the County Clerk’s office gives no notice that same-sex couples are ineligible to apply for a marriage license (because they aren’t) and they do not ask for verification that the applicants are of the opposite sex on their version of the NMSA 40-1-18 marriage application form (because New Mexico law does not require couples applying for a marriage license to be of the opposite sex).
Instead, Maggie and her staff put Bernalillo County’s same-sex couples through the humiliation and degradation of “playing along†with the applicants when they walk in for marriage licenses. They hand them one of their printed versions of the NMSA 40-1-18 sample marriage license application form and ask them to complete and submit the application to their staff. They are given a number to wait in line. Once the couple is seated in front of one of the clerks with the power of granting that license, their privacy is invaded, carte blanche. The couple is asked for their driver licenses or other legal IDs and their social security cards, an expected request, as applicants must prove their ages and Social Security numbers. Without the permission or often even the knowledge of the applicants, the clerks check the status of the applicants’ sex/gender that is noted on their identifying documents. This is done despite no law anywhere which requires this piece of information to be verified before granting the marriage license and despite no law even allowing them to do so for the purpose of issuing a marriage license. These identifying documents are indeed required
by law – for the purposes specifically stated. On her website’s “On-line Marriage License Application†form, the Bernalillo County Clerk clearly states why she and her staff need to see certain identifying documents before issuing a marriage license:
“Both parties must present a current legal picture ID (ID must include your photo, name, and your birth date on the same piece of identification, i.e. a driver’s license, state issued ID or Military ID). Both parties need proof of Social Security numbers (Social Security identification can include tax returns, government documents, or voter registration certificate). Voter registration certificates can be obtained at the Bureau of Elections Office, located at One Civic Plaza, 6th Floor, Room 6007.”
Notice that you are not reminded to bring proof of which sex/gender you are. Also, you DON’T need a photo ID. You can use your birth certificate.
(It should be noted that in the last 24 hours, some changes have been made to the Bernalillo County Clerk’s marriage license area of her website. At time of release of this letter, the quotes from her website were still accurate. However, one major change to the marriage license requirements –namely a new item added to the top—was observed and may be an indicator of more to come.)
Reasons why you need identity documents are much less clearly stated on Maggie’s latest printed version of the sample NMSA 40-1-18 marriage license application form. The form that is handed to applicants who walk in to her office and ask for a marriage license application reads as follows:
“Please have either your current state issued picture ID, passport, military ID & proof of complete Social Security number; either your social security card, tax papers, or check stub.â€
But, again, there’s no mention of needing to be of the opposite sex. (Just those pesky little applicant information section headings.)
Once the clerks granting marriage licenses for the County Clerk’s office secretly confirm the applicants are not of the opposite sex, they verbally refuse to accept their marriage license application, handing it back to the same-sex couple, in effect denying them their legal right to a marriage license. The usual explanation is “New Mexico law does not permit us to issue marriage licenses to same-sex couplesâ€. If applicants ask for further explanation, they are usually handed an unsigned, unaddressed, undated piece of paper with the following message printed on it:
“Regretfully, the County Clerk has been advised to not accept applications for Marriage License unless the following information contained in NM State Law is complete:
40-1-18. Form of application, license and certificate.
To the County Clerk: We the undersigned hereby make application to be united in marriage and certify that we are not related within the degree prohibited by the laws of this state; that neither is bound by marriage to another; that there exists no legal impediment to this marriage; and that the information contained herein is correct.
Male Applicant /Female Applicant
As this is a matter of State Law, the County Clerk encourages couples who are unable to meet the requirements of the application to contact their State Legislator.â€
Let’s not bother to digress into debating the accuracy and appropriateness (or lack thereof) of this piece of paper. Just let it be noted that engaged couples are being turned away at the marriage counter because they are being systematically deemed invalid as a committed couple eligible for legal marriage. They are having their privacy invaded and are being discriminated against by the Bernalillo County Clerk’s office. The piece of paper above is what those couple have to show for this degradation and mistreatment when they walk out of the Clerk’s office. That, and their completed but unaccepted marriage license application. This surely is not at all what New Mexico marriage laws state should happen to marriage license applicants in New Mexico’s County Clerk offices.
Neither NMSA 40-1-17 nor NMSA 40-1-18 state a requirement that marriage license applicant couples should be of the opposite sex. Nowhere will you find a blank to fill in or a box to check asking if you are male or female. In fact, nothing in any of the laws governing the contract of marriage in New Mexico assert a requirement that there be one female applicant and one male applicant—though County Clerk’s frequently post . An assumption was made (or laziness abounded) in the drafting of the sample form in NMSA 40-1-18, surely, but nothing is set out as a requirement.
Further, no law instructs the County Clerks of New Mexico to interpret any section heading of any form. Just fill in the blanks, please! The sample forms throughout NM Statutes are clearly provided to simply illustrate required information that should be gathered and recorded, and they are also likely included in Statute to save time and effort at the County or administrative level. Again, efficiency is the point. NOT INEQUALITY. Yet, Maggie and her County Clerk colleagues appear to be interpreting that “male†and “female†section label as a definition of what qualifies marriage license applicants, despite that they are not required to monitor, and maybe even are prohibited from invading their privacy by asking about, the sex/gender of marriage license applicants.
Legal qualifications and prohibitions for parties applying to enter the contract of marriage are indeed clearly set out in the law. And nowhere in the law are same-sex parties prohibited or prevented from applying for a marriage license.
It’s important to note that in the statement Maggie’s staff provided to denied same-sex couples and GetEQUAL NM on June 26, Maggie states that County Clerks “are not allowed to use our own discretion in interpreting the law, but must follow the lawâ€. She knows her place in New Mexico law. And it’s not in making or interpreting laws.
So, back to the obvious solution: Maggie should change the language on the form causing her to deny New Mexicans access to the marriage equality she claims to support and that New Mexico law allows.
As a matter of law, is Maggie allowed to change a section label on a form?
NMSA 40-1-17 clearly allows for deviation from the exact form provided in NMSA 40-1-18 (“SUBSTANTIALLY AS FOLLOWSâ€). It also clearly states the purpose of that sample form: “To insure a uniform system of records of all marriages hereafter contracted, and the better preservation of said record for future reference.â€
Pro-marriage-equality Bernalillo County Clerk Maggie Toulouse Oliver can easily and legally re-label (or even delete) section headings on her version of the sample NMSA 40-1-18 form, so long as she collects and records the same marriage license applicant information as every other County Clerk, as per NMSA 40-1-17. That change or deletion would eliminate the language she states is the sole reason she is compelled to deny marriage equality to her constituents. (Her interpretation of the purpose of including such a section label is prohibited by her own admission.) That changed form would also meet the requirements of being substantially the same form of application as required in NMSA 40-1-17, as it does indeed “insure a uniform system of records of all marriages hereafter contracted, and the better preservation of said record for future referenceâ€.
It is, in fact, so easy (AND LEGAL) to make changes to the sample form provided (not perpetrated) to County Clerks by NMSA 40-1-18 that the Bernalillo County Clerk has already done it!
In previous versions of the marriage license application form provided by Maggie Toulouse Oliver to applicants applying in person in her office, she modified the sample NMSA 40-1-18 form to include a wedding-styled watermark graphic — an illustrated silhouette of a couple in formal attire. One of the people in the graphic appears to be a female – or maybe just female identified? – as they are dressed in a ball gown and the other appears to be male – or male identified? – dressed in a tuxedo. Marriage license applicants that have spoken with or accompanied GetEQUAL NM to the Clerk’s marriage counter made note and mention of this strange hetero-normative graphic on more than one occasion as it appeared to be in stark contrast to the equality-minded Clerk’s previously stated ideals. Was that graphic trying to imply that only heterosexual couples need apply? Or maybe just butch/femme couples? Not likely the latter. Coupled with the denial of marriage licenses to same-sex couples and the inclusion of the “male†and “female†labels for the applicant information sections, one can surmise applicants were being put on notice that marriage equality was not accessible at the Bernalillo County Clerk’s office.
It was gratifying to note the sample NMSA 40-1-18 form had again been modified by her when GetEQUAL NM visited the Clerk’s marriage counter this week. Among other changes, the male/female wedding graphic watermark had been removed. Unfortunately, and surprisingly, Maggie’s new version of the sample NMSA 40-1-18 form she provided to applicants on June 26, 2013, DID still used “male” and “female” in the applicant information section headings. It was clear before they even wrote down their names that marriage equality was still going to be denied.
But there’s other GREAT news about Bernalillo County Clerk Maggie Toulouse Oliver’s versions of the NMSA 40-1-18 sample marriage license application form.
It has the 2 marriage license applicant information sections labeled as “Bride” and “Groom”! “Male†and “Female†are nowhere to be found.
That’s right, Bernalillo County Clerk Maggie Toulouse Oliver has done her job–as she swore to do; and, pursuant to NMSA 40-1-17, she has provided her constituents with a marriage license application form which is considered “substantially as follows”.
AND she has done the right thing. She has relabeled the applicant information section headings in such a way that she will not be compelled to secretly check applicants’ identity documents to illegally confirm their opposite sex/gender.
This is really good news. “Bride” and “Groom” are certainly not covered under identification laws – no one is legally considered a “bride†or “groom†like they are a “female†or “maleâ€. While not all couples would like to be relegated to “bride and groom” (just like not all gay female couples –especially butch/femme couples–like to be collectively referred to as “ladies”), they are certainly common titles, a convention or tradition, if you will, that gives the culturally expected respect and honor to marriage license applicants on that very special occasion of seeking to be joined in legal marriage. Did you know that in many marriage equality states and countries, you get to decide if you want to be a “brideâ€, “groomâ€, etc., on your final officially recorded marriage certificate? You just pick–freely check a box and get what you choose without question or prequalification. You can both pick the same or something different. So, while Maggie’s new marriage applicant information section headings “bride†and “groom†are indeed very heteronormative in nature, they in no way require anyone to possess a particular type of genetalia to claim the title. This is AS IT SHOULD BE according New Mexico law and according to what’s right.
Let’s be real here. The excuse of the form shown in NMSA 40-1-18 that Maggie and her colleagues have used over the years to deny same-sex couples the very marriage licenses she claims to believe they deserve is weak-minded and steeped in apathy—not at all in keeping with the skill set of the brilliant public service official I elected. It’s hiding behind tradition, avoiding conflict and thereby turning a willful blind eye to institutionalized oppression, illegal discrimination and the systematic segregation, degradation and socio-economic disempowerment and destruction of New Mexican families with same-sex partners. And, it’s UNNECESSARY. The laws and common sense clearly allows for another choice. New Mexicans, the American people and individuals across the globe support the end of oppressive practices in government. This will be a win-win situation.
Even IF NM law intended for her to deny same-sex couples the rights to marriage that she gives opposite-sex couples, it’s A VIOLATON OF CIVIL RIGHTS to define marriage as just between a man and a woman! And, even if NM courts and legislators haven’t officially handled that theoretical problem yet, it’s the law of the land, handed down by the Supreme Court of the United States. No one would challenge her and win if she granted same-sex couples marriage licenses today. Maggie herself stated clearly that she hopes and expects to lose Griego v. Oliver while meeting with GetEQUAL NM members and this author, marriage license applicant Lisa Taj McCellon, on June 26, 2013. Summary of the ACLU/NCLR New Mexico District Court case details from equalityontrial.com:
“The couples’ suit argues that New Mexico’s lack of marriage equality violates the New Mexico Constitution on five counts:
1) It denies same-sex couples equal protection under the law and discriminates on the basis of sexual orientation.
2) It violates the state constitution’s Equal Rights Amendment by discriminating on the basis of sex.
3) It denies same-sex couples’ due process rights “to marry, to privacy, to freedom of intimate association, and to other fundamental libertiesâ€4) It deprives couples of their right to freedom of speech and expressive association.
5) It violates the state constitution’s provision regarding the “natural, inherent and inalienable rights†of all citizens to “seek[] and obtain[] safety and happiness.â€
In terms of judicial remedy, the complaint asks the state court to rule that any refusal of marriage licenses to same-sex couples in New Mexico is unconstitutional and to direct county clerks to authorize the issuance of licenses to all couples regardless of sexual orientation.â€
And the entire planet is watching New Mexico because of our uniquely gender neutral marriage laws. A move forward on the equality front in our state will set off a nationwide domino effect. And thousands of people everywhere will stand behind anyone who bravely stands up for everyone. (Look to how people across the globe are responding to the actions of Texas State Senator Wendy Davis.)
Bernalillo County’s Clerk, Maggie Toulouse Oliver, is practically begging for us to push her hand in this so that she can step up and be the leader she wants to be. In that meeting on June 26, discussing why she denied this author and her same-sex partner, Stayce Driskell, a marriage license, Maggie said, “I am NOT the problem” to which McCellon replied, “I KNOW! That’s why I am bothering to have this conversation with you. I believe YOU ARE THE SOLUTION to the problem!”
STAND UP, Maggie.
BE THE CHANGE, Maggie.
You’ve got the power, and we’ve got your back.
CALL TO ACTION: All people everywhere who support full equality for everyone and who are willing to openly support Maggie pushing it forward, should share this letter, talk about this issue, contact Maggie (and those enforcing YOUR rights to equality) and #StandWithMaggie.
Peace, love and equality for all,
Lisa Taj McCellon
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Lisa and her spouse, Stayce Driskell were married legally in Iowa in May of 2009, and had a fairy tale non-legal wedding in in New Mexico in September in front of family and friends. The couple lives in Albuquerque, New Mexico, with their  three children.
You can reach Lisa through her Facebook page or through Twitter.
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Photos are from Facebook