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Gay marriage in New Mexico? Top state court seeks clarity for county clerks. (+video)

The New Mexico Supreme Court, seeking to resolve a discrepancy between county clerks, is hearing arguments Wednesday on whether the state constitution requires recognition of gay marriage.

New Mexico State Supreme Court to decide on gay marriage
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The highest court in New Mexico is set to take up a case on Wednesday that gay rights activists hope will soon make New Mexico the 15th state to recognize same-sex marriages.

At issue is the same basic question arising in a growing number of courts across the country: Do gay men and lesbians enjoy a constitutional right to marry?

Such litigation has taken on increased momentum following the US Supreme Court’s decision in June invalidating a portion of the Defense of Marriage Act.

Although the DOMA decision did not address the more fundamental constitutional issue, gay rights advocates are seizing on language from the decision to lay the ground work for a series of constitutional showdowns in both federal and state courts across the country.

On Wednesday, that campaign arrives at the New Mexico Supreme Court, where the court’s five justices will be asked to determine whether the state constitution requires recognition of same-sex marriages statewide.

“The plaintiffs have asked us to apply fundamental principles of constitutional law,” Albuquerque lawyer Peter Kierst, working with the ACLU of New Mexico, told reporters in a briefing.

“When the state creates a benefit it must make the benefit available to all equally,” he said. “Similar people must be treated similarly.”

Last week, the New Jersey Supreme Court ruled that civil unions in that state violated equal treatment principles of the New Jersey constitution because same-sex couples in civil unions were not entitled to receive the same federal benefits available to opposite-sex married couples.

New Mexico exists in a kind of middle ground in the national debate over same-sex marriage.

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