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AG asked to interpret N.M.’s law on marriage

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Santa Fe elected officials’ call this week for recognition that same-sex marriage is already legal in New Mexico has spurred a request to the Attorney General’s Office for a new interpretation of state law on the issue.

Doña Ana County Clerk Lynn Ellins said he is making the request through a state legislator, Rep. Bill McCamley, D-Mesilla. Ellins says he’s ready to begin issuing licenses for same-sex marriages if the resulting opinion allows it. Ellins announced his request Wednesday, a day after Santa Fe city officials said they believe New Mexico law allows county clerks to issue licenses for same-sex marriages.

“Doña Ana County stands ready to stand on the right side of history, given a green light by the Office of the Attorney General,” Ellins said in a statement released by his office.

On Tuesday, Santa Fe Mayor David Coss and City Councilor Patti Bushee introduced a city resolution recognizing gay marriage as lawful and urging issuance of same-sex licenses. And Santa Fe City Attorney Geno Zamora issued an opinion saying that gay marriage is legal in New Mexico.

Zamora maintains that the state constitution’s Equal Rights Amendment and New Mexico’s failure to define marriage as between a man and a woman in state law trump a statutory marriage license application form that does have spaces for one male applicant and one female applicant.

A 2004 opinion by then-Attorney General Patricia Madrid declared that 64 licenses issue to same-sex couples by the Sandoval County clerk were invalid, based on the state-mandated marriage license form.

A judge issued a restraining order that kept more licenses from being issued for gay marriages by Sandoval County in 2004, but no definitive court decision came out of the controversy.

Also Wednesday, Bernalillo County Clerk Maggie Toulouse Oliver said she supports same-sex marriage but can’t issue such licenses because of the 2004 legal guidance from the Attorney General’s Office. She said she hopes a court or the Legislature will weigh in.

“While I am personally in favor of same-sex marriage,” Oliver said, “my hands are legally tied at the moment. While I appreciate the Santa Fe city attorney’s legal opinion, it is still just an opinion, and one that conflicts with another legal opinion on the issue.”

KOB-TV reported that two men sought a marriage license at Oliver’s office Wednesday and were told no, based on the application form with no spaces for two male applicants.
— This article appeared on page C1 of the Albuquerque Journal

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