SANTA FE >> Lynn Ellins, the 77-year-old Doña Ana County clerk, took center stage in the summer's loudest controversy when he authorized same-sex marriages in his jurisdiction.
On Wednesday, Ellins and more than 160 other people packed the state Supreme Court to listen to arguments on whether his decision was correct. The court's ruling will be issued at a later date.
"I think the Supreme Court will sustain me," Ellins said after the five justices heard arguments in the case.
Ellins said a New Mexico statute may appear to ban marriages of people of the same gender, but a section of the state Constitution on equal rights trumps that law.
District judges in Bernalillo and Santa Fe counties ruled that gay marriage was lawful days after Ellins made his stand. This has created a patchwork of law on marriage licenses.
Clerks in eight New Mexico counties with about 60 percent of the state's population are issuing marriage licenses to same-sex couples. Those in the other 25 counties need clarity on marriage law, said Daniel Ivey-Soto, the attorney representing all 33 county clerks.
James Campbell, a lawyer for Republican legislators who oppose same-sex marriage, argued to the Supreme Court that couples bearing children were the very foundation of marriage. Male-female couples were all territorial legislators had in mind when they started writing marriage laws in 1862, he said.
Campbell said same-sex marriages undermine the idea that a child needs a mother and a father. Therefore, he said, the state has an abiding interest in maintaining traditional unions of women marrying only men.
Justice Richard Bosson seized on Campbell's comment and said there was not one word about procreation in state marriage statutes.
Bosson said people of appropriate age have a right to marry.
"Why shouldn't you be able to marry the person you choose?" Bosson asked.
Two other justices also questioned Campbell about his depiction of procreation as a foundation of marriage.
Justice Barbara Vigil asked him about couples of the same gender that raise children.
"We're not arguing that same-sex couples can't be good parents," Campbell said. Rather, he said, "children do best when raised by their own biological mother and father."
Justice Charles Daniels said marriage has advantages that have nothing to do with whether a couple has children. Inheritance rights and filing joint tax returns are the province of married couples, regardless of whether they have children, Daniels told Campbell.
State Sen. Bill Sharer, an outspoken opponent of same-sex marriage, said afterward that he thought Bosson and Daniels were predisposed to vote against his side. He said he based this on the tone of their questions.
Sharer, R-Farmington, said a loss in the state Supreme Court would not end the issue. He said he would introduce a constitutional amendment during the legislative session next year to specify that marriage is between one man and one woman.
If Sharer's bill cleared the Legislature, it would be placed on the statewide ballot in November 2014 so voters could make the final decision.
A bloc of Democrats in the Legislature, led by Rep. Brian Egolf of Santa Fe, presented a bill this year to have voters legalize same-sex marriages. Egolf's bill failed in a committee. Bills opposing gay marriage also have died in the Legislature.
The Supreme Court decided before the hearing not to make an immediate ruling from the bench.
No matter which way the decision goes, Ivey-Soto said he was sure the issue of same-sex marriage would be revived in the legislative session starting in January. In addition to being the county clerks' lawyer, Ivey-Soto is a Democratic state senator.
Sharer said about 1,300 bills could be introduced in the 30-day session. Typically, only a handful command interest. He said the issue of gay marriage could be one of those.