The clerks want the high court to issue a ruling with a statewide reach.
Clerks said the order from state District Judge Alan Malott last month that required the Bernalillo and Santa Fe county clerks to issue same-sex marriage licenses has caused confusion among other clerks about how to follow the state’s marriage laws. Malott’s order had no binding effect in other counties.
The 31 clerks, joined by clerks from Bernalillo and Santa Fe counties already involved in the lawsuit, and the New Mexico Association of Counties, agreed to collectively appeal to the state Supreme Court. “You have a case that involves all 33 county clerks, and all 33 county clerks have come together to say, ‘We need to know what the law means,’ ” said Daniel Ivey-Soto, executive director of the New Mexico County Clerks Affiliate and an attorney representing the clerks’ appeal.
Since Malott’s order, state judges in three other counties – Taos, Los Alamos and Grant – have directed clerks to issue same-sex marriage licenses. Clerks in Doña Ana, Valencia and San Miguel counties opted to begin issuing the licenses without court orders. By the time the clerks’ appeal was filed, the eight counties had issued a total of 915 same-sex marriage licenses.
Meanwhile, eight lawsuits have been filed against clerks to either stop the issuance of licenses where they’re being issued, or to order the issuance where they’re not, Ivey-Soto said. At least 18 other counties have been threatened with potential lawsuits, according to the clerks’ petition to the Supreme Court.
“We have lawsuits being filed on a daily basis, and that is not a good use of judicial resources,” Ivey-Soto said. “… It doesn’t make sense to have 33 different lawsuits to be filed when the question is the same in all of them.”
Before the clerks filed their appeal to the Supreme Court on Thursday, Malott, the Albuquerque judge who ruled same-sex marriage is constitutionally protected, granted a request to allow the coalition of county clerks to intervene in the case before him. That case was filed by six same-sex couples who sought marriage licenses but were denied in Bernalillo and Santa Fe counties.
The intervention allowed clerks legal authority to appeal Malott’s ruling without being an original party to the case, said Ivey-Soto, who also serves as a Democratic state senator representing Albuquerque.
Clerks noted in their appeal that, before Malott’s opinion, two New Mexico attorneys general – Patricia Madrid in 2004 and Gary King in 2013 – concluded that state statutes prohibit same-sex marriage. Malott’s order said the marriages should go forward because they’re protected by the state Constitution’s equal rights protection that prohibits discrimination because of gender.
“I think because of the AG rulings on this, and then the most recent ruling by the court, we’re just trying to point out the fact that it appears in statute that it doesn’t appear to be legal,” said Paul Gutierrez, executive director of the New Mexico Association of Counties.
If the Supreme Court agrees with Malott’s ruling that same-sex marriage is constitutionally protected, clerks are then asking the high court to clarify how they handle marriage license applications now designating, according to state law, “bride” and “groom.” Some county clerks have acted independently to change the forms to a gender-neutral version.
“We’re not taking a position on whether this is right or wrong for same-gender marriage. We just want to know what law to follow,” Gutierrez said.
Clerks are asking the Supreme Court to grant a writ of superintending control, a rarely approved fast track for the high court to consider an appeal.
The Supreme Court is not required to respond to the petition within any set period of time. If it’s denied, clerks could still pursue a traditional appeal of Malott’s ruling, Ivey-Soto said.
“Certainly, with the intervener status, we would have the right to pursue that appeal,” he said.