By Richard Benke
The Associated Press
New Mexico's attorney general asked the state Supreme Court on Tuesday to order a county clerk to halt imminent plans to issue same-sex marriage licenses.
"We are asking the New Mexico Supreme Court to require the Sandoval County clerk to follow the law and not issue any same-sex marriage licenses," Attorney General Patricia Madrid said.
Clerk Victoria Dunlap, who issued 66 same-sex marriage licenses Feb. 20, has said she planned to resume issuance Friday after a temporary restraining order expires.
The order was issued a week ago by a judge who subsequently withdrew from the case, leaving a window for same-sex couples to obtain licenses until another judge can be appointed.
If the high court agrees to the stay requested by Madrid, then Dunlap "of course will comply," her attorney, Paul Livingston, said Tuesday.
"We don't defy the Supreme Court, and we adhere to any stay that the Supreme Court imposes," Livingston said.
Madrid said she is not asking the court to decide the issue of the legality of gay or lesbian marriage but only whether a county clerk "has the authority to make law herself or to rule on the constitutionality of existing law in New Mexico. It's my position she doesn't have that authority."
The attorney general acknowledged that the withdrawal Monday of Judge Kenneth Brown from the case on which he ruled March 23 "has caused us a few problems."
Livingston's refusal to agree to expedite the selection of a new judge, which could close that window, means a longer, slower process of judicial selection by computer and assignment by a court clerk.
Madrid acknowledged that without intervention by the high court, "there's a possibility there could be a hiatus in which Victoria Dunlap would not be precluded" from issuing same-sex marriage licenses.
The attorney general asked the court for an emergency "writ of mandamus," which asks the court to command Dunlap to cease plans for the licenses.
Madrid said she expects to hear from the court quickly about whether they will consider such a writ. Livingston said he was busy drafting his response.
"These are extraordinary writs and they are not usually resorted to, but because of the timing we felt it was necessary," Madrid said.
She said there are 32 other county clerks who need guidance from the court.
Madrid elaborated on her view of state marriage law, saying Tuesday that a 1961 application form "is part of the statute." That application refers specifically to "male applicant" and "female applicant," she said.
However, Livingston says the 1961 form is outdated. A health examination mentioned on the form is no longer required, he noted.
Furthermore, he said the marriage law says only that the form should be substantially like the 1961 form. He says that's not the stuff of which mandamus writs are made.
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