Report from Santa Fe; Brian Egolf

. . Report from Santa Fe is made possible in part by Grant Strong, the members of the National Education Association of New Mexico, an organization of professionals who believe that investing in public education is an investment in our state's economic future. And by a grant from the Healy Foundation, Tau's New Mexico. Hello, I'm Lorraine Mills and welcome to report from Santa Fe. Our guest today is Representative Brian Egaugh. Thank you for joining us. My pleasure. We've been in the house since 2009. You're a Democrat from Santa Fe County. You chair the Energy and Natural Resources Committee in the house. Your Vice Chair of the Drought Subcommittee, I hope we can get to that in a minute. But we've just had this big Supreme Court decision about doma, the Defensive Marriage Act.

Would you tell us about your own constitutional member that you put in this last session? And how you think this decision will affect New Mexico? Sure. So to start with the Supreme Court decision, I'll kind of start from the bottom and come back down to New Mexico. I see this as another step in a series of really profound steps that the country's taken really since 2009 when the process was started to repeal, don't ask, don't tell. I think that had a profound impact on the country to see our heroes returning overseas are not able to serve openly and are able to not have to hide the fact that they love who they love. And when you have kids and little towns all across America who see the parades and the returning soldiers, and all those kids know that they've got gay, straight, and lesbian soldiers returning, I think that has a big impact. Now we've seen in the last election cycle where all anti-equality ballot initiatives were defeated and where you saw states take major steps in the direction of marriage equality.

You're starting to see the national tide really has turned in a fast and a profound way. And the DOMA decision, the defensive marriage act decision from the US Supreme Court is really the next and most recent step. And it's a huge decision. Because what it says is that the federal government will no longer discriminate against married couples based on the gender of the people in that marriage. And we'll extend federal benefits and federal recognition to those marriages that are performed legally in the states. So a couple from New York that's legally married in New York, it doesn't matter if they're opposite sex or same sex couple. They're married and that's all the federal government we'll look at now. They'll be able to file joint taxes, spousal benefits, social security. It's going to have a huge impact on many, many families across the country. And that's really at the end of the day what marriage equality is about. It's about families.

It's about giving the same official recognition to married couples that love each other and want to spend their lives together. And for me, as a father to young kids who sees their friends at school, it is so important to me personally that the kids growing up in a house with two moms or two dads that they learn and that they know and they believe that their family counts just as much as my family with a mom and a dad. And we're taking those steps and I'm happy because it's the kids ultimately that are, I think, going to get the biggest benefit because they know that their families matter just as much. It's true. One of the reasons for this decision was the humiliation that kids of same sex parents would feel by not having, you know, first-class citizens as maybe the discrimination and the hurtfulness that they suffered. Now, how will this, now that the feds, the Supreme Court has made this decision, there are what, 12 or 13 states that have already allowed same sex marriage?

12 states, the District of Columbia and now California, will be 14. And I think New Mexico is going to be 15 and I think it will happen this year. Well, tell us, will it come about through the ballot, through the legislature, through the courts? I think the legislative efforts are not going to get the job done, at least not in the short term. I introduced an amendment to the Constitution in this past session not to create a right but to recognize a right that already exists in New Mexico. The New Mexico Constitution contains an equal rights amendment that is unique to New Mexico. It is much more expansive and protective than the federal Constitution and grants much stronger protections to people to ensure that they are treated equally under the law, that their rights are recognized regardless of, in this case, their sex. The marriage statutes in New Mexico do not have a sex or gender requirement,

but one is being imposed by this sample form that is included in the marriage statutes. So, we have not in my capacity as a legislator, but in my job as a private attorney, actually today, filed with the New Mexico Supreme Court, a petition for what is called the writ of mandamus, asking that the Supreme Court direct the Santa Fe County clerk and County clerks around the state to begin to issue marriage licenses right away. Well, I know the gentleman who you represent in this and they got amazing press, the New York Times, and then proposed Sacramento B for all over the country, people are looking, their eyes are on Santa Fe and on you as their attorney to see how this will be treated in the New Mexico Supreme Court. Are you optimistic? Well, the lawyer in me never wants to go too far in making statements about cases,

but we wouldn't have filed the petition with the Supreme Court if we didn't think we had a good chance of success. What we're doing is, and there are other lawsuits that have been filed, we had one almost identical that we filed in the district court that we've withdrawn today. There's another lawsuit that was filed in Albuquerque over the marriage issue that is a more traditional lawsuit where they intend to have a trial and go through the regular process. Here, we are representing clients who don't want to wait, they want to get married, and I, as their lawyer, am trying to find the quickest way to make that happen for them. And it's not right to ask them to wait two or three or four years to go through a regular trial and appellate process when what we're talking about is their fundamental right to be treated equally by their government. So the filing asks the court to take it, it's not required, so the Supreme Court may not take the case, but we are using a provision in New Mexico law that allows the Supreme Court to take a case

when it's presented with a matter of great public concern. And certainly, I think we've met that issue here. And I think we've demonstrated that the Supreme Court really is the only speedy way to get this issue resolved. I think the justices are likely to conclude that they'll face this issue one way or another, and hopefully they'll decide to take the case right away. Now, in this last session, you did have the Constitutional Amendment, and that didn't leave the House, actually, didn't leave committee. That's right. It was stopped in the voters and elections committee by vote of 75 with two Democrats joining the Republicans to defeat it. That's why when folks ask, why not wait for the legislature to do this? Well, the composition of the legislature is not going to change between now and the next meeting. I don't know that there's enough possibility of change for this to become a viable issue in the legislature in the next 60-day session.

But in the meantime, the only option that we have is to go to the courts. My preference would be, yeah, it'd be great not to have to take a petition to the Supreme Court, but as I said, I've got folks that were representing that want to get married, and this is the way to do it. Now, the governor has come out and said, Governor Martinez has said, let the people decide. The legislature shouldn't decide. But that's what you were in effect doing with this Constitutional Amendment. It was, if it had passed the House and Senate, and she signed it, it would have been on the ballot. Now she's saying, let's put something on the ballot. Again, that would be, that's very, very lengthy process. Right. It would be, it would be the fall of 2014 that it would be voted on, and then there'd have to probably be some sort of enactment legislation after that. I was very careful when we put our amendment in this last session together, not to make it a referendum on the creation of rights. In other words, we were not putting a right to marry into the state Constitution.

The amendment was very short. It was just two sentences. And it said, a county clerk shall not deny a marriage license on the basis of the sex of either applicant, and then stated that a religious institution need not recognize a marriage that conflicts with its religious views. So the idea was not, for example, the first amendment to the U.S. Constitution. The view is that that creates the right to speech, et cetera. We were not trying to create new rights with the amendment that I introduced in the last session. Instead, the effort was to recognize, as I said, a right that already exists in the state Constitution and to restrict government officials from denying the rights to the people. So if the Supreme Court route that you've taken is successful, there won't have to be a constitutional amendment or there won't be a vote. One thing that concerns me, if there is, if it say it's plan B and the people vote,

in California when proposition came up, they were just assaulted with out-of-state big money ads, very manipulative, and turned out, you know, that's one of the reasons that in the other Supreme Court decision that overturned California's proposition eight. But if it, I just don't want us to be subject as we are in these elections, these days since Citizens United, with all this out-of-state money. Sure. Well, and I understand that. I think the likelihood of something passing in the next session and being on the ballot from either direction. Pro or anti-equality. I think the likelihood of anything passing the legislature and making on the ballot is extremely remote. The, in between the proposition eight fight and what happened in this last session, there was still just as much money accumulated and just as much fight that went into these issues. But the anti-equality forces at play lost everyone in the 2012 elections.

If something were to get onto the ballot in New Mexico, yeah, we'd see the money. But I think New Mexicans are inherently fair. And if the New Mexico Supreme Court were to recognize the rights that we believe are already in the state constitution, and if the court directs the marriage licenses to be issued, I cannot conceive that the voters of New Mexico would turn out a year later to take away rights from people that had already been recognized. Because one of the great things that happens when states adopt marriage equality is all the naysayers, all the chicken littles that think this guy is going to crash up on their heads. After the first marriage licenses get issued and after the first couples get married, everyone wakes up the next day. The sun comes up, husbands still love their wives, kids still go to school, and life goes on. Life goes on is just life goes on in a country that's a little bit fairer and a lot more equal. And people get to realize that.

They see their neighbors across the street that have been living together but weren't married. Now they're married, and they're still the same people. And now they've got all the things that come along with that. So I think that's why the transition has been so rapid. And I think it's a surprise a lot of people. How quickly the tide of public opinion has turned. Because right now you've got almost 20% of the country living in states where marriage equality is recognized. When California starts, they'll be over 30% of the country. And when you start then seeing couples that are legally married in Iowa or New York or California, move to places like Alabama where it's not recognized. That will then give rise to I think the final round of court cases that will bring marriage equality coast to coast and border to border. When a couple living in mobile decides that they want to file a joint tax return with the state to go with the joint tax return to the federal government, and it's denied that will give rise I think to the same sorts of arguments that we saw around the proposition around the DOMA case.

Now let's talk a little about the principles in the DOMA case. Because one of the benefits to allowing same-sex marriage for the couples involved is the tremendous financial security and stability it gives. Can you talk a little about the woman in her 80s who... The case arose, we were just discussing it this morning. It's a brilliant choice by the lawyers that used this as the case to bring DOMA down. It was a couple that was legally married in New York to women, one of the women passed away and was required to pay to the federal government, $360,000 in a state taxes that would not have been owed if the couple had been married, or if they were able to file as a married couple. So she paid the money and then sued the IRS for a refund, and that is the case that was decided. And that's where Justice Kennedy acknowledged that when states want to give shelter to couples, the only reason the federal government would choose not to recognize those marriages is out of bare animus, just simple spite or meanness.

And that is not a sufficient reason for the government to do anything, let alone deny equality to a couple. And there's a lot more to the ruling, it's a good read, and I think the viewers would I think be well served to check out the US Supreme Court's website and read the opinion, it's quite good. Well, we're speaking today with Representative Brian Ega from Santa Fe, and who's done a lot of work on fairness and justice issues. The other benefit that can't be overlooked is the health care and health issues. There were cases in Florida where a couple of the same types of couples have been together 40 or 50 years. One was not allowed to be at the deathbed of the other one because they weren't officially, their marriage was not recognized. And so that whole emotional aspect of being able to support each other at the greatest time or greatest need is also another one of the benefits besides the financial security.

Absolutely, I have clients and I've had to prepare lots and lots of documents for them to be able to make health care decisions and make end of life decisions that you really don't need if you are recognized as being married. And it's a shame that the same sex couples have to go through that. They have to hire a lawyer, they have to make all these contracts and it's just not right. And you also hear about these cases where folks are not allowed to be in the hospital. And every time we hear one of those stories, I just think to myself, what's wrong with the hospital administrator to not allow the person in. There's just a human element there where the denial of that, I think, is just shameful for the person not to let the two folks be together at the end, but that's obviously a separate issue. Yes, so your timetable, as your case at the New Mexico Supreme Court, what are you looking at if all goes well?

So, again, I can only really speak about what typically would happen in this type of procedure. We would hope to know in the next week or two if the Supreme Court chooses to take the case. If they do, there are, and this, by the way, I should mention, this is a relatively rare procedure. So there's not a lot of guidance. Okay, so we expect in the next week or two, maybe a bit longer, they'll let us know if they have chosen to accept the case. If they do, they have a few options. One is they could set the case for a hearing and that would mean they would issue a writ to the clerk of Santa Fe County until an ask her, command her, to appear at a certain date and time. To explain why she should not be required to issue marriage licenses.

The other option would be the court would ask all the sides to file legal briefs and then have a hearing and make a decision after that. I also really need to say that even though we have brought a lawsuit against the Santa Fe County clerk, my view and my client's view is that she is a wonderful and fair and just person. And she has said that before she breaks with tradition and before she breaks with the Attorney General's opinion that she needs legal guidance from a court. And so this is meant not as an adversarial thing against the clerk. This is really meant as a mechanism to give her the guidance that she's asked for. And it's also, I think, important to mention that in the case, unlike other lawsuits that have been filed on this issue, we're not asking for money damages. We're not asking for our attorney's fees. So this is not going to cost the taxpayers money. This is just about trying to get the licenses.

Well, you have done, I'd like to shift focus a little bit and thank you for your work in this last session for the fair wages for women. Now, I know Lily Ledbetter who did the federal and her case, the Ledbetter Fair Pay Act was really such an important case, but we didn't have it here. And so thank you for fighting for the rights for another minority, the women. And the governor's signed it, it is now law. And now women are protected in terms of receiving a fair wage. And it's really, I have to give credit to the governor. It is to her credit that she signed it. And the bottom line sort of take away on the Fair Pay for Women Act is that we have taken the federal law and proved it in a number of important ways and made it a state law claim. So that woman who's getting paid less for the same job in Raton doesn't have to file a federal lawsuit and risk being assigned to a judge in Las Cruces. She can instead go across the street to the Colfax County Courthouse and see justice there.

And so that I think is the real big improvement to bring opportunities to find justice closer to home. Yeah. Now there's a lot we could talk about with your energy and natural resources work because there's a cutting edge there. But you're also let's talk about the drought subcommittee. There's some things that we cannot legislate and that's any more water or any more rain. But what is what is the drought subcommittee trying to do? You're made up of both senators and representatives. And what is the action in that committee? Well, there's a couple big issues that we're starting with. One is a growing sense that I share that maybe this isn't a drought. Maybe this is starting to get into the new normal that we've been in a wet period that is coming to an end. There is some support from looking at tree ring data, for example. There are trees in New Mexico that are thousands of years old and you can look and see relative periods of wetness and dryness.

Based on the thickness of the tree rings that are added every year. And you see about a thousand year cycle where in every thousand years there's a wet century. And it may be that we are at the end of the wet century in the next 900 years or so is going to be more like it is right now. So the question becomes is that true? Is this, are the current conditions more typical or are we in a temporary drought? So number one is figuring out what we're actually dealing with. And then two, how do we deal with the consequences? Because if it is, and I believe a lot of it is influenced by human caused climate change, New Mexico just simply is unable because of our size to make meaningful changes on our own to climate change. There has to be national international work done. And we are not really faced with how do we stop climate change as a state government, but the question is how do we cope with it?

And there's going to have to be a lot of work and serious thought about what our economic future needs to be. There's about 80, well a little bit north of 80% of the state's water is consumed in the agricultural industry. The use of water for hydraulic fracturing is increasing. Some of those wells can use 25 or 30 million gallons of water per well. And you're starting to see some conflict arise between agricultural uses and oil and gas operations in the southern part of the state where oil companies are buying irrigation water rights and drawing out land and closing down farms so they can use that water for oil and gas. This is going to require some serious thought. And if the problem is as dire as I think it is, there's going to need to be shared sacrifice even among municipal users in a town like Santa Fe. I wanted to ask you about that because we have had for years the model of growth expand new subdivisions and this and that.

The truth is and we both live in Santa Fe is that we don't have the water for that anymore and yet they're still giving out these building permits and they tried for a while to use the low flow toilets as a way to bank extra water so you could then afford these new permits. But what is going to happen? What other municipalities are going to have to say, okay, we're just going to sit where we are right now and be sure that there's enough for everyone who lives here enough water. Well, we're there already. The Buckman Direct Aversion Project in Santa Fe is already forecast it was just completed so it was just started last year I think. They're already expecting a 10% reduction in the supply from the Buckman Direct Aversion Project in the next 10 years because the San Juan Chama water that is used in that project, they're expecting that those flows are going to be reducing by 10% starting in about 10 years on down to up to 30% deficit and supply. Now, when you have just spent hundreds of millions of dollars on a water system and before it's hardly even online, you're already seeing that the supply is not there.

That really should be grabbing attention to a lot of people. Santa Fe is already one of the most water conscious and water wise communities in the country in terms of gallons per person per day. But we need to do more and on this, I don't know the answer because it's going to require a lot of personal responsibility from people that just simply don't maybe don't know that don't understand the need or don't know how to reduce their consumption, but it's got to start taking place. Well, I mentioned they'll have to be a public education program, you know, change our awareness of water and I don't see people washing their cars and their driveway anymore. No, and it's been successful in Albuquerque, the water authority in Albuquerque, Bernalillo County. Their public awareness campaigns have had a fair rate of success in reducing consumption and their water by the numbers program and things like that.

Santa Fe may be in the position where it's got to start doing some public awareness. Well, I'm so grateful that you've come to join us. I feel that we've gotten really the cutting edge interpretation of what's happening and do you have any words to leave us with things to think about actions maybe to take on water on water on equality on water. If you don't need it, don't put it in your glass and every little bit helps in terms of conservation on equality. I think it's just important to see the tide of history and just ask people to get on the right side of history and love one another and be supportive of the folks that are really sticking their necks out to make a better country for everybody. Well, I want to thank you. Our guest today is Representative Brian Ega from Santa Fe and I want to thank you for your efforts to make our state and our life much better. Well, thank you for having the show so that everyone around the state knows what's going on.

Can hear what's going on. Thank you so much, Brian. And I'm Larry Mills. I'd like to thank your audience for being with us today on report from Santa Fe. We'll see you next week. Past archival programs of report from Santa Fe are available at the website report from Santa Fe dot com. If you have questions or comments, please email info at report from Santa Fe dot com. Report from Santa Fe is made possible in part by grants from the members of the National Education Association of New Mexico, an organization of professionals who believe that investing in public education is an investment in our state's economic future. And by a grant from the Healey Foundation, Taos, New Mexico. Thank you.

Thank you. Thank you.