Seven Republican legislators filed a lawsuit Friday to stop the Doña Ana County clerk from issuing marriage licenses to same-sex couples.
The state lawmakers claim Doña Ana County Clerk Lynn Ellins overstepped his legal authority Aug. 21 when he decided to start issuing marriage licenses to gay and lesbian couples.
They also claim Ellins usurped their rights as legislators by taking matters into his own hands.
“We’ve got a real mess on our hands,” said Albuquerque attorney Paul Becht, who represents the Republican legislators.
County clerks in six counties – Doña Ana, Bernalillo, Santa Fe, Taos, San Miguel and Valencia – have started issuing same-sex marriage licenses in the past two weeks as gay and lesbian couples have sought to be married in all parts of the state.
However, several of those clerks began issuing marriage licenses to same-sex couples only in response to lower court orders.
Ellins, in contrast, started issuing marriage licenses voluntarily, saying that he believes state laws that have been viewed as prohibiting the practice are unconstitutional and that he was tired of waiting for court action.
Attorney General Gary King, a Democrat, declined to take action to stop the issuance of marriage licenses in Doña Ana County. His stance has angered some Republicans, including Gov. Susana Martinez.
The Republican lawsuit is one of several legal challenges that could wind up before the state Supreme Court. However, the state’s highest court has denied requests to consolidate and take over pending gay marriage lawsuits.
Amber Royster, executive director of Equality New Mexico, said she was not surprised by the Republican lawmakers’ lawsuit and said she is hopeful the Supreme Court soon issues a decisive, statewide ruling on the legality of same-sex marriage.
“We can’t have certain areas in New Mexico recognizing same-sex couples and all of a sudden you go outside the county borders and it’s invalid,” Royster said.
State Sen. Cisco McSorley, an Albuquerque Democrat, criticized the Republican lawmakers, claiming there have been ample opportunities to address the issue of same-sex marriage in the Legislature.
“For the group that opposed any kind of compromise on any kind of gay rights legislation to now tell the people of the state of New Mexico they ought to come back to the Legislature (to address the issue) is pretty ridiculous,” McSorley said.
One of the seven GOP lawmakers listed on the lawsuit, Sen. William Sharer of Farmington, criticized Ellins in his blog this week, “A county clerk should not be allowed to create law out of thin air.”
Besides Sharer, the legislator plaintiffs are Rep. Jimmie Hall, R-Albuquerque, Rep. Dennis Roch, R-Texico, Rep. Yvette Herrell, R-Alamogordo, Sen. Steven Neville, R-Aztec, Rep. James Strickler, R-Farmington, Rep. David Gallegos, R-Eunice.
Meanwhile, Los Alamos County Clerk Sharon Stover said Friday that she had not decided how to respond to a judge’s order to either begin issuing marriage licenses to same-sex couples or show up in court next week to argue why she should not have to do so.
Stover, a Republican, told the Journal she would not issue licenses to gay and lesbian couples in the meantime.
The order in the Los Alamos County case came after a lesbian couple was denied a marriage license and subsequently filed a lawsuit.
A similar suit was filed late Thursday against Sandoval County Clerk Eileen Garbagni on behalf of two women from Placitas. It was filed by lawyers for the American Civil Liberties Union of New Mexico.
Garbagni’s staff had denied the Placitas couple’s marriage request on Wednesday, and the county clerk said earlier this week that she was not prepared to issue such licenses until she received a court order compelling her to do so.
Journal staff writers Rosalie Rayburn and James Monteleone contributed to this report.