(Recasts with comments from attorneys and judge)
By Zelie Pollon
SANTA FE, N.M., Oct 23 (Reuters) - The New Mexico Supreme Court heard arguments on Wednesday on whether same-sex couples should be allowed to wed in a state where such unions are, for the time being, neither expressly recognized nor prohibited by law.
Stepping into an intense and often bitter national debate, the court agreed last month to settle the matter for the state of New Mexico after some counties began issuing marriage licenses to gay and lesbian couples.
Jim Campbell, counsel for 12 Republicans contesting same-sex unions, argued that the purpose of the marriage statutes was to encourage procreation. Allowing same sex-couples to marry would, he said, "discourage" couples of the opposite sex from marrying and procreating.
Attorney for the American Civil Liberties Union, Maureen Sanders, countered that same-sex marriage was protected under constitutional and statutory principles barring discrimination.
"The state of New Mexico has never made a promise to have children as a condition of being married and so it should not be offered as a reason why same-sex couples ought not to be able to be married in New Mexico."
Justice Charles Daniels appeared sympathetic to the argument, noting that marriage entailed "many other benefits," most of which had "nothing to do with whether we have children." He mentioned tax benefits, inheritance and property rights.
Currently, eight New Mexico counties allow gay couples to wed, and more than 900 couples have applied for same-sex marriage licenses since clerks in those jurisdictions began issuing them in recent months.
A number of Republican state lawmakers have responded by filing a lawsuit challenging the authority of the clerk of Dona Ana County, which includes the state's second-most populous town, Las Cruces, to issue marriage licenses to gay couples.
The debate reached a crescendo when all 33 county clerks in the state joined the ACLU and the National Center for Lesbian Rights in petitioning New Mexico's high court to decide the issue on a statewide basis.
Wednesday's oral arguments come two days after New Jersey Governor Chris Christie, a Republican, agreed to drop his appeal of a court decision that effectively legalized gay marriage in his state. Including New Jersey, same-sex marriage is legal in 14 states and the District of Columbia.
STATE CONSTITUTION VAGUE
Some gay marriage opponents have welcomed the intervention of the state Supreme Court.
"We need to have a ruling one way or the other instead of, 'My county can, yours can't,'" said state Representative Anna Crook, a Republican from the town of Clovis and one of the state lawmakers participating in the lawsuit in Dona Ana County.
The state's constitution is non-specific on the issue, referring to marriage simply as a union between two people.
Republican state Senator Bill Sharer argues that New Mexico's constitutional definition of marriage, which he said is unique among the states, is a century-old construct intended primarily to outlaw polygamy, or plural marriage.
Confining marriage exclusively between men and women went without saying, according to Sharer, who has led the charge against same-sex unions in the state.
Others, including Republican Governor Susana Martinez, have said the issue should be put to voters. Gay rights advocates counter that the courts are the most appropriate forum for deciding civil liberties.
Alex Hanna and his partner, Yon Hudson, were among those who went to court after initially being denied a marriage license in Santa Fe County, before a district judge ordered the county clerk to issue licenses to same-sex couples.
"Obviously we're very happy the Supreme Court is finally stepping in," Hanna said. "We're confident the Supreme Court will uphold the district court rulings and that it will be a state law very soon."
The justices did not rule at Wednesday's hearing. Lawyers expect the court to render a decision by year's end. (Reporting by Zelie Pollon; Editing by Steve Gorman, Cynthia Johnston, Jackie Frank and Gunna Dickson)
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