SANTA FE, N.M. — Doña Ana County became the only county in New Mexico to issue same-sex marriage licenses Wednesday, and the state’s attorney general said he won’t take any legal action to halt the practice.
By the end of the day, 42 marriage licenses were issued to same-sex couples.
Doña Ana County Clerk Lynn Ellins said he began issuing same-sex marriage licenses because he believes state laws that have prohibited the practice are unconstitutional.
While same-sex couples in Albuquerque and Santa Fe have filed lawsuits this year asking the state courts to decide whether the state’s limits on same-sex marriage should be overturned, Ellins said he grew tired of waiting.
“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),” Ellins said. “I decided it’s time to stop waiting.”
Ellins, a Democrat, said he “would not be surprised if someone tried to enjoin me from issuing these licenses. If a court enjoins me from doing it, I’ll stop.”
But Attorney General Gary King, a Democrat, said his office won’t file legal action to stop the issuance of same-sex marriage licenses in Doña Ana County.
The comments from King come less than two months after the attorney general concluded New Mexico state law does not allow same-sex marriage following a detailed review of state marriage laws at the request of state Rep. Bill McCamley, D-Las Cruces.
King has said he believes the state Supreme Court would rule state laws limiting marriage to opposite-sex couples are unconstitutional. Established marriage laws, King said, violate a provision in the New Mexico Constitution that promises equal protection in law, regardless of gender.
King previously urged county clerks to wait until state courts addressed the constitutionality of New Mexico same-sex marriage prohibitions before acting independently to issue the licenses.
“We feel like our position that the laws aren’t constitutional presents a barrier from us bringing action in that suit,” King said.
“… Here’s a case where we have an obligation to defend the laws of the state of New Mexico to the extent that they’re not unconstitutional, but I have a higher obligation to defend the Constitution,” he said.
King said others, such as state legislators, might have the legal standing to file suit to force a halt to Doña Ana’s issuance of same-sex marriage licenses. It would be up to the courts to determine who can legally intervene, King said.
Gov. Susana Martinez, who has voiced opposition to same-sex marriage in New Mexico, repeated her call to put the question to voters in a state constitutional amendment proposal.
“I’ve always been really clear about where I stand in reference to marriage, and that it is between a man and a woman,” Martinez said in a statement Wednesday. “If that should change, that should be a change that is made by the people.”
Acting outside the courts’ direction, Ellins risks issuing same-sex marriage licences in Doña Ana County that might be voided if the state Supreme Court ruled current state marriage laws are legal.
The American Civil Liberties Union of New Mexico, representing two same-sex couples denied marriage licenses in Bernalillo County, warned that advocates for same-sex marriage rights in New Mexico should temper their enthusiasm until the courts weigh in.
“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,” said ACLU New Mexico Legal Director Laura Schauer Ives.
Not the first
Doña Ana County is not the first in New Mexico to issue same-sex marriage licenses.
In 2004, Sandoval County Clerk Victoria Dunlap, a Republican, began issuing same-sex marriage licenses. The same day, after 64 marriage licenses were approved, the practice was halted after then-Attorney General Patricia Madrid, a Democrat, stepped in with legal action and warned that the licenses were invalid under New Mexico law.
New Mexico courts, in at least once instance, recognized a same-sex marriage license issued by Sandoval County as valid by granting one of the couples a divorce last year.
But Madrid’s 2004 directive on the legality of same-sex marriage has remained the reference for New Mexico county clerks who have denied marriage licenses to same-sex couples.
Bernalillo County Clerk Maggie Toulouse Oliver said Wednesday that she expects to wait until the state courts weigh in – potentially through the lawsuit filed by the ACLU against Bernalillo County currently pending in state District Court – on the constitutionality of same-sex marriage before Bernalillo County follows Doña Ana’s lead.
“I’m personally in favor of same-sex marriage,” Toulouse Oliver said. But “I really would like for there to be a very clear legal precedent on this. I would like to resolve some of the murky legal issues that seem to be in play.”
Santa Fe Mayor David Coss, who helped push through a recent city resolution declaring same-sex marriage already legal in New Mexico, said in a statement that “history was made today in Doña Ana County.”
The response, however, was not all positive.
The New Mexico Conference of Catholic Bishops, which has voiced opposition to same-sex marriage, criticized the Doña Ana County clerk for sidestepping public debate on the issue.
“This is a significant matter that affects society at large and as such is one that is best decided through the legislative branch of government,” the Conference of Catholic Bishops said in a statement. “The legislative process … at the state government not only allows appropriate public debate on the issue but provides definitive legal direction for the state.”
Journal staff writer Kiera Hay contributed to this report.