The move came on another whirlwind day: Attorney General Gary King upholding the validity of marriage licenses issued to same-sex couples in 2004 by a former Sandoval County clerk; and the state Supreme Court turning down a request by the lawyer for two Santa Fe men to consolidate and take over several pending gay marriage lawsuits.
County clerks in six counties – Bernalillo, Santa Fe, Doña Ana, San Miguel, Valencia and Taos – started issuing same-sex marriage licenses in the past two weeks, either voluntarily or in response to lower court orders.
However, legal uncertainty over whether other county clerks should follow suit and whether clerks can alter marriage application forms to make them gender neutral prompted the clerks to take action Wednesday.
“We want some direction,” Santa Fe County Clerk Geraldine Salazar said. “We think it’s important.”
New Mexico is the only state that has not explicitly allowed or disallowed same-sex marriage – via legislation, a popular vote or a high court ruling, according to legal experts. That statutory uncertainty has led to a range of legal interpretations.
During a Wednesday conference call, county clerks voted 31-0 to have their attorney seek a state Supreme Court ruling to address their concerns and determine whether the constitution’s equal-rights protection allows for same-sex marriage, said Daniel Ivey-Soto, executive director of the New Mexico County Clerks Affiliate.
The two county clerks who did not initially cast votes later pledged their support for the effort, said Ivey-Soto, who also is a Democratic state senator from Albuquerque.
He said a court motion will be filed today, though it had not been decided in which court to file the motion or whether to appeal one of the already-issued court orders. The aim still would be to get a Supreme Court ruling with statewide bearing.
Since the floodgates opened, county clerks in most, if not all, 33 New Mexico counties have been visited by same-sex couples seeking marriage licenses, Ivey-Soto said. He said it’s expected that lawsuits will be filed against county clerks who refuse to issue them.
“Instead of getting picked off one by one, the county clerks decided they need an answer,” Ivey-Soto said. “County clerks need to know what is their responsibility.”
All the state’s county clerks – 21 Democrats and 12 Republicans – offered to have their names listed in court briefs, he said.
Meanwhile, a letter Attorney General King emailed on Wednesday to current Sandoval County Clerk Eileen Garbagni said a license issued by a county clerk in New Mexico is “presumptively valid” unless a court of competent jurisdiction acts to invalidate it.
The letter said King’s office learned that the word “void” or “illegal” was written on the licenses issued to same-sex couples in 2004 who became known as the “Sandoval 64.”
While county clerks have the legal duty to issue marriage licenses, King’s letter said, “New Mexico law plainly does not provide county clerks with the right to invalidate marriages.”
“It’s definitely very good news,” said Mary Houdek. She and Norma Rey Vázquez de Houdek were the first to receive a marriage license from then-Sandoval County Clerk Victoria Dunlap in February 2004.
Houdek said they have always considered their marriage legal.
Dunlap started a media frenzy in 2004 when she decided to issue the licenses after receiving inquiries from same-sex couples. Within hours, then-Attorney General Patricia Madrid, a Democrat, advised Dunlap that the licenses would be “invalid under current law.”
Journal research for a 2009 story about the couples revealed that someone had hand-written “Illegal” in red pen on archived copies of each of the licenses.
Garbagni, a Democrat elected county clerk in 2012, said copies without the word were scanned into the county’s computer system. Anyone wanting a clean copy can pick one up, she said.
Garbagni said she had no idea who wrote on the licenses. She thinks it might have been because of Madrid’s advice at the time.
“I think it’s terrible,” Garbagni said.
Unlike her counterparts in Bernalillo, Doña Ana, Santa Fe, San Miguel, Taos and Valencia counties, Garbagni said she is not currently prepared to issue marriage licenses to same-sex couples until she receives a court order to do so.
“I’m just going to wait until they call me and tell me otherwise,” Garbagni said.
King, a Democrat, did not intervene when Doña Ana County Clerk Lynn Ellins began issuing same-sex marriages last week. The attorney general has said he believes denying marriage to gay couples is unconstitutional, although he has also said he does not believe same-sex marriage is allowed under current state law.
The Associated Press contributed to this report.