Stover, who had denied the couple a marriage license when they applied for one last week, said she based that decision on language contained in the state statutes.
But Judge Sheri Raphaelson focused primarily on the law that addresses marriage licenses. Raphaelson noted that the statute refers only to “the couple” and makes no distinction between male or female.
“There’s nothing that makes a gender distinction in that language,” she said, acknowledging that the marriage application forms issued by the state do ask for the names of the male and female applicant.
The judge also noted that the statute uses the word “shall” in directing county clerks to issue licenses to those who qualify. Raphaelson said the statute trumps the form.
With the ruling, Los Alamos became the eighth New Mexico county to begin issuing marriage licenses to same-sex couples.
After the hearing, Janet Newton and Maria Thibodeau met Stover at the county clerk’s office for a marriage license.
They have not set a wedding date.
While the couple could have gone to another county that already was issuing licenses, Newton said they wanted to do it in Los Alamos, her hometown.
“For me, it was very important for it to be a Los Alamos County license,” she said. “It has a lot of power for anybody who is connected to the community that your community recognizes that it is important to view you as equal.”
The hearing was held after Raphaelson last week ordered Stover to begin issuing marriage licenses to same-sex couples or appear before the court to explain why she wouldn’t.
In refusing to issue the licenses, Los Alamos became the first New Mexico county to defy a court order on same-sex marriage.
Los Alamos County Attorney Rebecca Ehler, who represented Stover at the hearing, first asked the judge for a stay in the matter, citing another case in Bernalillo County that addresses the same issue.
“Whatever is decided here would not resolve the many issues regarding the gay marriage issue,” she said. “The Bernalillo case does.”
Santa Fe attorney Brian Egolf, representing Newton and Thibodeau, argued that staying the case would call for speculation that the New Mexico Supreme Court would soon rule on the matter.
“To ask for a stay on the grounds the Supreme Court may act is not fair,” he said. “Issuing licenses in Los Alamos County would be adding to the list of those (counties) who already have and brings no harm to anyone.”
Raphaelson agreed, saying that if there were any pending cases on the issue, she would consider a stay. But since there weren’t, she denied the request.
Next, Ehler argued that the state statutes contain both gender-neutral and gender-specific language with regard to issuing marriage licenses.
“The court should look at the statute as a whole, not just one,” she said.
Ehler said because the statute refers to male and female under the section that addresses forms for applications and licenses, “it exceeds the clerks’ authority to issue an alternative form.”
Egolf said the forms have become obsolete, also containing a section that asks for the date of a premarital physical examination – something clerks do not require.
He also argued that the marriage license statute outlines three prohibitions to marriage and being of the same sex is not one of them.
Egolf concluded by saying that when the New Mexico Equal Rights Amendment was adopted by the Legislature and became part of the state constitution in 1972, same-sex marriage then became “the law of the land.”
Afterward, Stover said state laws needed clarification and there ought to be uniformity on the issue, rather than the piecemeal governance that has been occurring county by county.
Stover said county clerks have been “caught in the middle” of the same-sex marriage debate, and it should be up to the Legislature to change the statutes to provide guidance.
“It’s about having good governance; it’s about having good laws that can be used,” she said, noting the confusion created by the application forms. “It’s an antiquated form and needs to be fixed. And that’s what we hope will happen through the state Legislature.”
Asked if she would appeal Raphaelson’s decision, Ehler said she would consult with the state’s association of county clerks, which had signed on as an intervener in the same-sex lawsuit in Bernalillo County, before making a decision.
“We’re going to have to talk and see what we can do to further the case and get a clean decision,” she said. “People are owed a comprehensive answer to the question.”
Egolf said an appeal might be a good thing.
“If it’s appealed, it could be the mechanism to get the matter to the Supreme Court, which is what we need,” he said.