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>> WHEN THE SUPREME COURT STRUCK DOWN PART OF THE
DEFENSIVE MARRIAGE ACT, MANY ASSUMED THIS MEANT SWEEPING
LEGALIZATION OF GAY MARRIAGE BUT IT IS NOT SO CUT AND DRY.
NMIF CORRESPONDENT GWYNETH DOLAND ASKED ATTORNEYS AND
LEGAL SCHOLARS, ANTOINETTE SEDILLO LOPEZ AND STEVEN
HOMER, TO CLARIFY WHAT THE RULING MEANS FOR NEW MEXICO.
>> WE ARE JOINED TODAY BY TWO LEGAL SCHOLARS FROM THE
UNIVERSITY OF NEW MEXICO ANTOINETTE SEDILLO LOPEZ,
PROFESSOR SPECIALIZING IN FAMILY LAW, AND STEVEN HOMER
IS A PROFESSOR WHO HAS TAUGHT *** ORIENTATION AND THE
LAW. THANK YOU BOTH FOR BEING WITH
US HERE TODAY. >> A FEW WEEKS AGO THE U.S.
SUPREME COURT RULED THAT THE FEDERAL GOVERNMENT CAN'T
REFUSE TO RECOGNIZE SAME-SEX MARRIAGES PERFORMED IN STATES
THAT HAVE LEGALIZED IT. BUT, BRINGING THAT DOWN TO NEW
MEXICO, AND ANTOINETTE I'LL START WITH YOU, DID THAT MEAN
THAT NEW MEXICO CAN'T REFUSE TO RECOGNIZE THOSE MARRIAGES?
>> WELL, LEGALLY IT DOESN'T BUT NEW MEXICO ACTUALLY HAS A
STATUTORY PROVISION THAT SAYS, IF A MARRIAGE IS VALID WHERE
IT WAS PERFORMED, IT WILL BE RECOGNIZED IN NEW MEXICO.
BUT, YOU KNOW, TECHNICAL MATTER, YES, THERE IS THE
POWER OF THE STATE TO DO SO UNDER THIS CASE.
>> WELL, LET ME PHRASE IT A DIFFERENT WAY FOR YOU.
DID THAT DECISION MEAN THAT SAME-SEX COUPLES IN NEW MEXICO
WILL BE ABLE TO GET MARRIED HERE?
>> NO. THE DECISION ONLY AFFECTS THE
REACHES OF THE FEDERAL GOVERNMENT'S AUTHORITY ON THIS
ISSUE. SO, ALL THAT THE DECISION,
DOMA DECISION, ALL THAT IT HELD WAS THAT THE FEDERAL
GOVERNMENT CANNOT REFUSE TO RECOGNIZE VALID SAME-SEX
MARRIAGES IF VALID IN THE STATE IN WHICH THE COUPLE IS
ASSERTING THE MARRIAGE. >> SO, NEW MEXICO DOESN'T
ALLOW SAME-SEX MARRIAGE BUT WE DON'T HAVE A LAW ON THE BOOKS
THAT BANS IT. IS THAT RIGHT?
>> THAT IS RIGHT. WE ARE ONE OF THE ONLY STATES
OR WE ARE THE ONLY STATE. >> SO, THAT LEAVES US IN A BIT
OF A GRAY AREA. ISN'T IT TRUE THAT NEW MEXICO
COURTS CAN DIVORCE COUPLES SAME-SEX COUPLES MARRIED IN
OTHER STATES? >> RELYING ON THAT STATUTORY
PROVISION, THEY DO SO. BECAUSE, THE MARRIAGE IS
VALID, THEY COME TO NEW MEXICO AND IT IS KIND OF A COMITY
ISSUE OR EVEN A FULL FAITH AND CREDIT KIND OF ISSUE WE'RE A
FEDERAL SYSTEM SO WE HAVE TO RECOGNIZE EACH OTHER'S LAWS
AND RULINGS IN ORDER TO SORT OF FUNCTION.
AND, SO, THAT IS WHAT HAS BEEN HAPPENING IN NEW MEXICO.
AND, WILL CONTINUE TO HAPPEN UNLESS SOMETHING DRASTIC
CHANGES. >> LEGALLY, WE HAVE TO DO THAT
BECAUSE WE HAVE TO BE ABLE TO DIVORCE PEOPLE THAT WERE
MARRIED OTHER PLACES BUT THAT DOESN'T MEAN THAT WE HAVE TO
RECOGNIZE THOSE MARRIAGES IN OTHER WAYS, STEVEN, IS THAT
RIGHT? >> I THINK THAT IS STILL A
GRAY AREA, SAY, FOR EXAMPLE, A SAME-SEX COUPLE IS MARRIED
SOMEWHERE ELSE, CAME HERE, AND THEN ONE OF THEM DIES WITHOUT
A WILL AND THE SURVIVING SPOUSE SAYS, I AM SURVIVING
SPOUSE I WOULD ORDINARILY BE ENTITLED TO ALL THAT STUFF.
WE DON'T KNOW THE ANSWER TO THAT YET, HOW NEW MEXICO
COURTS WOULD HANDLE THAT. AS ANTOINETTE POINTS OUT, WE
DO HAVE A STATUTE THAT SAYS NEW MEXICO RECOGNIZES AS VALID
MARRIAGES THAT WERE VALID ELSEWHERE, SO THAT SUGGESTS,
BUT DOESN'T TOTALLY ANSWER THE QUESTION.
>> SO, THE BOTTOM LINE FOR THIS FEDERAL RULING IS THAT
FEDERAL EMPLOYEES WILL GET SOME BENEFITS.
>> LOTS OF PLACES WILL GET BENEFITS, SOCIAL SECURITY,
IMMIGRATION LAW, RIO RANCHO BENEFITS, RETIREMENT BENEFITS,
ALL -- >> IMMIGRATION PREFERENCES.
>> IMMIGRATION PREFERENCES. ANY TIME THE FEDERAL
GOVERNMENT RECOGNIZES A MARRIAGE AND THE CASE ITSELF
SAYS IT IS OVER 1000 PLACES IN THE FEDERAL STATUTE THAT THEY
LOOK TO MARRIAGE. >> SO, THIS OBVIOUSLY APPLIES
TO FEDERAL EMPLOYEES BUT IS IT GOING TO APPLY TO COUPLES
MARRIED ELSEWHERE WHO ARE LIVING HERE?
>> YES. I THINK SO.
BECAUSE, WE HAVE AN OPINION FROM THE ATTORNEY GENERAL THAT
SAYS NEW MEXICO WILL RECOGNIZE FOREIGN, SAME-SEX MARRIAGES.
AND, THIS STATUTE THAT SAYS NEW MEXICO WILL DO SO, SO IT
SUGGESTS THAT A SAME-SEX COUPLE LIVING HERE, WHO WERE
MARRIED SOMEWHERE ELSE -- >> AS LONG AS IT WAS VALID.
>> AS LONG AS IT IS VALID THERE.
>> THAT SOMEWHERE ELSE. >> SHOULD BE ABLE TO GET
FEDERAL BENEFITS LIKE, FOR EXAMPLE, MY SPOUSE IS NOT A
U.S. CITIZEN BUT HE SHOULD BE ENTITLED TO A GREEN CARD
BECAUSE I AM A U.S. CITIZEN. >> WHAT DOES THIS REALLY NOT
DO? WHAT ARE SOME OF THE BIG
THINGS THAT IT DOESN'T EVEN ADDRESS HERE?
>> IT DOESN'T ADDRESS THE QUESTION OF WHETHER STATES
MUST ALLOW SAME-SEX MARRIAGE. THAT IS STILL LEFT OPEN.
THE OTHER THING IT DOESN'T DO, THIS IS TECHNICAL, BUT, IT
DOESN'T CLARIFY HOW CONSTITUTIONALLY BAD ANTIGAY
DISCRIMINATION LAWS ARE. IT LEAVES THAT OPEN.
SO, WE STILL DON'T KNOW IF LAWS THAT DISCRIMINATE AGAINST
GAY PEOPLE GENERALLY ARE PRESUMPTIVELY BAD OR
PRESUMPTIVELY OKAY AND JUST INDIVIDUAL ONES MIGHT BE BAD,
IF YOU FOLLOW ME. >> FOR EXAMPLE, IF I AM A
BUSINESS OWNER WHO DOES PHOTOGRAPHY, I CAN
DISCRIMINATE LEGALLY AGAINST NEW YORK YANKEE FANS.
>> YES, YOU CAN. >> RIGHT, I CAN SAY, I ONLY
AM, YOU KNOW, I AM A DODGERS PERSON, I AM ONLY GOING TO
SHOOT PICTURES FOR DODGERS FANS, BUT I CAN'T SAY I AM NOT
GOING TO TAKE PICTURES OF YOUR WEDDING BECAUSE YOU'RE BLACK?
>> YOU CANNOT DO THAT. >> SO, THE QUESTION HERE IS
DOES THAT APPLY TO GAY PEOPLE? >> THAT IS THE QUESTION THAT
THE COURT SPECIFICALLY DID NOT ANSWER.
>> OKAY. >> WHETHER YOU CAN
DISCRIMINATE. >> DO YOU THINK THAT FOLKS ARE
THINKING THAT THIS FEDERAL RULING HAS BROADER IMPACT THAN
IT REALLY DOES OR ADDRESSES MORE THAN IT DOES?
IS THERE A MISCONCEPTION? >> PEOPLE DO THINK IT
ADDRESSES MORE THAN IT SPECIFICALLY DOES, BUT IT IS A
LANDMARK DECISION IN THE SENSE THAT IT OPENS ALL KINDS OF
DOORS AND ALL KINDS OF POSSIBILITIES.
I THINK THAT THE PEOPLE WHO ARE BRINGING THE LITIGATION
HERE IN NEW MEXICO TO RECOGNIZE IT, I WOULD SAY THEY
ARE PROBABLY EMBOLDENED BY THIS DECISION AND A LOT OF
INDIVIDUALS ARE EMBOLDENED BY THIS DECISION AND TRY TO MAKE
THE LAW, AS STEVEN DESCRIBES, WHICH IS, YOU CAN'T
DISCRIMINATE. BASED ON THE HISTORY OF
DISCRIMINATION AGAINST GAY PEOPLE, WE SHOULD NOT BE A
SOCIETY THAT PERMITS DISCRIMINATION AGAINST GAY
PEOPLE. THAT IS THE CASE --
>> ACTUALLY THAT IS RIGHT AND I THINK YOU'RE RIGHT, I THINK
THERE ARE SOME PEOPLE WHO IMAGINED THAT FEDERAL
RECOGNITION FOR PURPOSES OF SPECIFIC FEDERAL BENEFITS
SOMEHOW ALSO MEANT NATIONWIDE MARRIAGE EQUALITY.
AND IT DOESN'T MEAN THAT. THAT ISN'T WHAT THIS DECISION
DID. >> TALK ABOUT THAT LAWSUIT FOR
A SECOND HERE. ACLU IS REPRESENTING SEVERAL
COUPLES WHO ARE PETITIONING THE STATE SUPREME COURT TO
RULE ON THE ISSUE OF WHETHER SAME-SEX COUPLES CAN MARRY IN
NEW MEXICO. ARE YOU FAMILIAR WITH THEIR
ARGUMENT? >> I DON'T KNOW ALL OF THE
DETAILS. I KNOW THEY ARE ADVANCING A
LOT OF ARGUMENT UNDER THE STATE CONSTITUTION WHICH IS
MORE GENEROUS THAN THE FEDERAL CONSTITUTION.
>> SPECIFICALLY, THE EQUAL RIGHTS AMENDMENT AND NEW
MEXICO -- THAT WOULD BE REALLY INTERESTING BECAUSE THERE
AREN'T A LOT OF CASES UNDER EQUAL RIGHTS AMENDMENT SO IF
THEY PREVAIL UNDER THAT PROVISION OF OUR CONSTITUTION,
THAT WOULD BE PRETTY INTERESTING.
>> WHY? >> BECAUSE WHAT AN EQUAL
RIGHTS AMENDMENT MEANS SEPARATELY FROM AN EQUAL
PROTECTION CLAUSE WOULD BE SORT OF CLEARER AND BECAUSE A
LOT OF PEOPLE ARGUE THERE IS NO ADVANTAGE TO EQUAL RIGHTS
AMENDMENT BECAUSE WE HAVE EQUAL PROTECTION CLAUSE AND
THIS WOULD DEMONSTRATE WHETHER THAT IS TRUE OR NOT.
>> AN INTERESTING PHILOSOPHICAL QUESTION, AND I
WON'T GO TOO DEEPLY INTO THIS, IS THE DISCRIMINATION AGAINST
GAY PEOPLE BASIC SEX OR GENDER DISCRIMINATION OR IS ITS OWN
THING? SO, IF IT'S DECIDED UNDER THE
ERA, WHICH PROHIBITS GENDER DISCRIMINATION, THEN THAT
WOULD BE GOOD AS A PRACTICAL MATTER FOR GAY PEOPLE BUT
MIGHT NOT DIRECTLY ADDRESS THE QUESTION OF ANTIGAY
DISCRIMINATION. >> IF THE ACLU IS SUCCESSFUL
IN THIS LAWSUIT, WHAT WILL CHANGE HERE?
>> THEN, MARRIAGE WILL -- YOU CAN CREATE A MARRIAGE IN NEW
MEXICO. YOU WILL BE ABLE TO DO THAT,
JUST LIKE IN NEW MEXICO, A LOT OF PEOPLE DON'T KNOW THIS,
FIRST COUSINS CAN MARRY AND THERE ARE OTHER STATES WHICH
PROHIBIT THOSE KINDS OF MARRIAGES.
NEW MEXICO WILL BE A STATE WHERE YOU CAN GET MARRIED AS A
GAY COUPLE. GIVE US AN IDEA OF SOME OF THE
BENEFITS THAT THOSE COUPLES WILL GET HERE IN NEW MEXICO
NOW THAT THEY DON'T GET. >> WELL, THEY WILL BE ENTITLED
TO THE FEDERAL BENEFITS AND ALSO THE RESPONSIBILITIES AND
LET'S NOT FORGET, THEY ARE GOING TO HAVE TO PAY TAXES AS
A MARRIED COUPLE AND THERE IS A MARRIAGE TAX PENALTY, SO,
THEY ARE GOING TO HAVE TO PAY THAT.
BUT, THE OTHER, COMMUNITY PROPERTY, ELIGIBLE TO HAVE THE
COMMUNITY PROPERTY LAWS APPLY TO THEM AND THAT IS
SIGNIFICANT BECAUSE NEW MEXICO IS VERY PROGRESSIVE WITH
COMMUNITY PROPERTY LAWS. SO THAT IS SOMETHING THEY
DON'T HAVE BENEFIT TO RIGHT NOW.
>> ALSO, YOU KNOW, IF YOU'RE MARRIED, AND, UNFORTUNATELY,
YOU'RE SPOUSE IS KILLED IN AN ACCIDENT, THEN YOU HAVE A
LAWSUIT THAT YOU CAN FILE. SAME-SEX COUPLES DON'T HAVE
THAT. IF THEY WERE MARRIED THEY
WOULD HAVE A WRONGFUL DEATH ACTION.
AS ALLUDED TO BEFORE, IF ONE DIES DOESN'T HAVE A WILL, THEN
THEY ARE PRESUMPTIVELY ENTITLED ALL THAT PERSON'S
PROPERTY AS BEING THE SURVIVING SPOUSE AND THESE ARE
THINGS THAT YOU CAN'T GET BY AN AGREEMENT.
SOME PEOPLE SAY, WELL, YOU CAN JUST FORM A CONTRACT WITH YOUR
POTENTIAL SPOUSE AND GET ALL THE STUFF, BUT THERE ARE SOME
THINGS YOU CANNOT AGREE INTO AND YOU ACTUALLY HAVE TO BE
MARRIED TO GET. >> INSURANCE BENEFITS, ALL
KINDS OF WORKER COMPENSATION BENEFITS.
>> YOU KNOW, YOU HAVE MENTIONED IMMIGRATION EARLIER.
AND WE ARE A BORDER STATE, WE HAVE GOT A LOT OF COUPLES WHO
MAYBE STRADDLE THAT BORDER. HOW DOES THE FEDERAL RULING
IMPACT IMMIGRATION OR FAMILIES WHERE ONE SPOUSE LIVES IN
ANOTHER COUNTRY OR HAS -- >> NOW THAT SPOUSE WILL HAVE
THE SPOUSAL PREFERENCE UNDER IMMIGRATION LAW.
THAT IS HUGE. THERE HAVE ALREADY BEEN
REPORTS OF COUPLES APPLYING. >> WE HAVE ONE COUPLE IN NEW
YORK WHERE THE SAME-SEX PARTNER HAS RECEIVED A GREEN
CARD. >> MAKES IT EASIER TO BRING
THEM IN IF THE MARRIAGE IS RECOGNIZED.
DOES IT IMPACT ADOPTION? >> IN NEW MEXICO THERE IS NOT
A PROHIBITION AGAINST ADOPTION BY SAME-SEX COUPLES BUT SOME
AGENCIES HAVE A PREFERENCE FOR MARRIED COUPLES, SO, THEY'LL
GET THAT ADVANTAGE. >> IF THE STATE SUPREME COURT
DOES RULE THAT SAME-SEX COUPLES CAN MARRY HERE,
STEVEN, IS THAT THE END OF IT? ARE WE DONE?
>> I WOULD LIKE TO THINK SO. BUT THERE COULD CERTAINLY BE
LITIGATION THAT FOLLOWS FROM -- DEPENDS, I GUESS, HOW
THEY WORD THE OPINION AND HOW BROADLY THEY WORD IT.
BUT, YOU COULD CERTAINLY IMAGINE PEOPLE SUING OVER ONE
OF THE FINER DETAILS OF WHAT THAT REALLY MEANS.
>> THAT ISSUE YOU DESCRIBED THAT YOU STARTED DESCRIBING
ABOUT BUSINESSES WHO MAY WANT TO DENY BENEFITS TO MARRIED
PEOPLE THAT THEY GIVE TO OTHER MARRIED PEOPLE, THAT ISSUE, I
THINK -- >> THERE COULD BE A MOVE TO
AMEND THE STATE CONSTITUTION. THIS LAWSUIT WILL BE DECIDED
ON STATE CONSTITUTIONAL GROUNDS SO SOMEBODY COULD SAY
I WANT TO AMEND THE CONSTITUTION TO PROHIBIT
SAME-SEX MARRIAGE AND THEN WE HAVE TO HAVE THAT FIGHT.
>> AT THE LEGISLATURE, OR -- >> SO, PART OF THIS IN
DISTRICT COURT AND PART IN SUPREME COURT BUT LET'S JUST
TALK ABOUT THAT. HOW DO YOU THINK THEY WILL
RULE BASED ON YOUR OBSERVATIONS?
>> I AM NOT SURE. I AM NOT SO SURE.
I REALLY -- THEY HAVE A STRONG RECORD ON EQUALITY BUT THEY
DON'T HAVE MUCH OF A RECORD ON SAME-SEX ISSUES.
SO, I AM NOT REALLY SURE. WHAT DO YOU THINK?
>> I AM OPTIMISTIC. THE FEW CASES THAT THE SUPREME
COURT HAS HANDED DOWN THAT DEAL WITH GAY PEOPLE HAVE
GENERALLY COME OUR WAY. THEY HAVE BEEN MOSTLY IN THE
FAMILY LAW CONTEXT. >> THERE HAVE BEEN A FEW.
>> AND CENTERED ON FAMILY LAW PRINCIPLES BUT MOSTLY OUR WAY.
>> THERE ARE A COUPLE CASES THAT DID NOT -- WERE NOT
SUPPORTIVE. THERE IS SOME CUSTODY CASES
THAT REALLY WERE SURPRISING TO ME.
SO, I DON'T KNOW. LIKE I SAID, I WOULD HESITATE
TO PREDICT. >> THE SUPREME COURT CAN
DECLINE TO TOUCH THE MATTER AT ALL.
>> THAT IS RIGHT. >> WHAT HAPPENS THEN?
>> IT COULD BE LITIGATED THROUGH, BACK TO THE DISTRICT
COURT, UP TO COURT APPEALS AND THEY CAN DEAL WITH IT LATER.
>> WE HAVE SEEN IN OPINIONS SURVEYS OVER THE PAST FEW
YEARS THIS RATHER DRAMATIC SHIFT IN PUBLIC OPINION FROM
OPPOSING SAME-SEX MARRIAGE TO SUPPORTING IT.
HOW SENSITIVE, STEVEN, ARE THE COURTS TO PUBLIC OPINION?
IS THIS SOMETHING THAT AFFECTS THEM AT ALL?
>> YOU KNOW, OFFICIALLY, NO, RIGHT, THEY ARE SUPPOSED TO BE
ABOVE THAT KIND OF THING BUT THEY ARE HUMAN BEINGS AND I
THINK TO THE EXTENT THAT AS JUDGES THEY FEEL LIKE THEY
DON'T WANT TO GET TOO FAR AHEAD OF PUBLIC OPINION, IT IS
HELPFUL FOR THEM TO KNOW THAT PUBLIC OPINION IS SHIFTING, TO
SUPPORT THE DECISION IN THAT WAY.
>> WELL, THERE ARE SOME SITUATIONS LIKE THE EXECUTION
OF MENTALLY RETARDED. BECAUSE STATES AROUND THE
COUNTRY STARTED FINDING THAT THE EXECUTION OF MENTALLY
RETARDED WAS CRUEL AND UNUSUAL, THEN THE SUPREME
COURT CAME IN WITH ITS OPINION AND SO I DO THINK THERE IS AN
IMPACT. WHEN EVERY OTHER STATE, WHEN
PUBLIC OPINION CHANGED SO DRAMATICALLY THAT THE COURT
KIND OF CATCHES UP WITH IT, BUT YOU'RE RIGHT, THEY DON'T
LIKE TO GO AHEAD OF IT. >> I HAVE A JOKE WITH MY
STUDENTS, U.S. SUPREME COURT IS, ON ANY GIVEN ISSUE, IF
YOU'RE TRYING TO PREDICT HOW THEY RULE, TRY TO THINK WHAT
PUBLIC OPINION WOULD HAVE BEEN 20 YEARS AGO AND THAT IS HOW
THEY RULE. THAT IS ACTUALLY A PRETTY GOOD
RULE OF THUMB SOMETIMES. >> I THINK, AND I THINK NEW
MEXICO SUPREME COURT IS AHEAD OF THAT CURVE.
>> I THINK SO TOO. >> SPEAKING OF YOUR STUDENTS,
ARE THESE ISSUES AND RULINGS GOING TO CHANGE YOUR CLASSES
AND THE THINGS THAT YOU TALK ABOUT THIS FALL?
>> ABSOLUTELY. YEAH.
I AM ALREADY THINKING OF WAYS THAT I CAN PUT THESE ISSUES
INTO THE SYLLABUS. >> I HAVE HAD TO GO TO MY
FAMILY LAW SYLLABUS AND TOPIC BY TOPIC CHANGE THE COURSE.
IT IS GOING TO BE REALLY PROFOUND.
>> IS THAT EXCITING OR A FUN THING TO HAVE HAPPEN?
>> YES. >> IT WAS VERY EXCITING THIS
SUMMER BECAUSE I WAS TEACHING IN MEXICO, COMPARATIVE HUMAN
RIGHTS AND TALKING ABOUT THESE ISSUES ON AN INTERNATIONAL
SCALE AND THEN THE CASE CAME DOWN LIKE A COUPLE DAYS AFTER
WE HAD THIS BIG DISCUSSION AND SO IT WAS VERY EXCITING
BECAUSE WE WERE READING THE OPINIONS AND TALKING ABOUT
THEM AND IT WAS VERY RAW. USUALLY THE CASES COME DOWN IN
THE SUMMER, PROFESSOR PROCESSES THEM AND PRESENTS
THEM IN THE FALL, SO THIS WAS JUST GREAT FUN.
I HAD A BLAST AND IT WILL BE REALLY INTERESTING TO SEE.
>> I WAS TEACHING MY *** ORIENTATION AND THE LAW
SEMINAR WHEN THE ARGUMENT HAPPENED.
SO IT WAS INTERESTING TO READ THE PARTY'S BRIEFS AND LISTEN
TO ARGUMENT AND THAT CONVERSATION, IT WAS EXCITING.
>> THANK YOU BOTH VERY MUCH FOR BEING WITH US TODAY.
>> HAPPY TO DO IT. >> THANK YOU, GWYNETH.