Local lawmakers say they support the effort to stop what they see as court clerks and judges skirting the Legislature on the issue of gay marriage.
Sen. Craig Brandt and state Reps. Tim Lewis and Jason Harper, all Republicans from Rio Rancho, have expressed concern over the way in which marriage licenses were issued to same-sex couples. All three said they are Christian and believe marriage should only be between a man and woman.
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.
The clerks in Bernalillo and Santa Fe counties began issuing marriage licenses to same-sex couples only in response to lower court orders. Like the Doña Ana County clerk, clerks in San Miguel and Valencia counties had no court order but chose to begin issuing same-sex marriage licenses anyway. A judge in Taos County has ordered the county clerk to issue licenses, but the clerk was seeking a legal opinion before issuing them.
Brandt, Lewis and Harper say that this is not the appropriate way to deal with the issue of same-sex marriage.
“It’s dangerous on both sides of the aisle when we start allowing judges to write the law,” Brandt said.
However, the local lawmakers are not among the seven Republican legislators who filed a lawsuit Friday over similar concerns. That suit is meant to stop Doña Ana County Clerk Lynn Ellins from issuing marriage licenses to same-sex couples.
The lawsuit claims that Ellins overstepped his legal authority Aug. 21 when he decided to start issuing marriage licenses to gay and lesbian couples and that Ellins usurped their rights as legislators by taking matters into his own hands.
Albuquerque attorney Paul Becht — who represents plaintiffs 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; and Rep. David Gallegos, R-Eunice — said the clerk’s action “flies in the face of the Legislature’s constitutional right to be the entity that creates the laws.”
Harper echoed that concern.
“These county clerks are saying that, because the law if vague, it’s within their purview to evaluate or interpret the law and basically break decades of precedence and cut out the legislature,” he said.
Lewis went a little further, saying he is not only concerned about county clerks interpreting the law on their own, but that it is part of an overarching erosion of morals of the country.
“People are getting away from principles and absolutes,” he said.
Sandoval County Clerk Eileen Garbagni has not issued same-sex marriage licenses but said she will do so if she is directed to by the district court.
She has also said she wouldn’t follow a move by former Sandoval County Clerk Victoria Dunlap, who issued same sex marriage licenses in 2004. The Republican clerk was ordered to stop by then-Attorney General Patricia Madrid, who also stated that the licenses that were issued were invalid.
The state’s current attorney general, Gary King, recently issued an opinion stating that Madrid had no authority to rule the licenses invalid.