Welcome to New Mexico, where sheriffs and county clerks apparently rule by fiat. After all, law school takes years, you have to pass a bar exam, it takes an appointment or election to get on the bench, and the wheels of justice turn slowly; why wait for a precedent-setting court decision on an important constitutional question?
That’s the mentality behind Doña Ana County Clerk Lynn Ellins issuing same-sex marriage licenses – he says he believes state laws that have prohibited the practice are unconstitutional. It mirrors the mentality of 30 of the state’s 33 county sheriffs who earlier this year were reported to have vowed to support the Second Amendment over proposed legislation banning certain weapons because they are under oath to support the U.S. Constitution. Ellins says, “I decided it was time to move forward because it’s still going to be a while before it’s going to be decided (in court). I decided it’s time to stop waiting.”
So why, exactly, does he or almost all of the state’s sheriffs think we have three branches of government? Hint: It’s to ensure laws are properly and thoroughly vetted and interpreted.
The American Civil Liberties Union of New Mexico, which is representing two same-sex couples denied marriage licenses in Bernalillo County, believes in working within the system. Legal Director Laura Schauer Ives says, “We understand the urgency same-sex couples in New Mexico feel to get married. At the same time, we want to be sure that same-sex couples understand that we will not have certainty until our state courts have the opportunity to weigh in on the issue.”
Or, the Legislature could also address the issue either by statute or constitutional amendment.
Attorney General Gary King has advised county clerks to wait until state courts address the constitutionality of New Mexico same-sex marriage prohibitions. He has said he believes the state Supreme Court would rule those are unconstitutional. Justices have said the gay marriage issue should be pursued in a lower court where it is fully briefed and argued before coming to the high court – whose job it is to interpret statute and constitution.
And while King is giving Ellins his tacit blessing under the theory that using the weight of his office to halt same-sex licenses would be defending an unconstitutional law, in fact it could get a precedent-setting court decision on the law that much sooner.
And it would be a decision that holds up in law and in court – not one made outside the legislative, executive and judicial branches by a county clerk.
If that’s how we’re going to do it, we don’t need a judicial system.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.