SANTA FE – The New Mexico Supreme Court will hold a hearing on Oct. 23 on the legality of same-sex marriage, the court’s clerk confirmed Friday.
The decision by the state’s highest court to hear the case came one day after New Mexico’s 33 county clerks requested a decisive, statewide ruling.
Same-sex marriage has been sanctioned in recent weeks in several New Mexico counties – including the state’s three most highly populated ones – despite opposition from some Republican legislators.
Both Democratic and Republican county clerks welcomed the news Friday that the Supreme Court had scheduled a court hearing.
“Certainly there has been some murkiness on the issue and we need some clarity,” said Bernalillo County Clerk Maggie Toulouse Oliver, a Democrat. “I am hopeful the Supreme Court can provide that.”
“It’s been difficult for us to be caught in the middle,” said Los Alamos County Clerk Sharon Stover, a Republican. Stover was ordered this week by a state district judge to issue a marriage license to a lesbian couple who had previously been turned away.
Seven New Mexico counties – Bernalillo, Santa Fe, Doña Ana, Valencia, Taos, San Miguel and Los Alamos – have begun issuing marriage licenses in the past three weeks, either voluntarily or in response to lower court orders.
An eighth county clerk, Grant County Clerk Robert Zamarripa, has said he will start issuing marriage licenses to gay and lesbian couples on Monday.
Until Friday, the Supreme Court had denied requests to take over and consolidate pending gay marriage lawsuits.
However, the court opted to at least hold a hearing on the matter – there is no guarantee a decision will be issued immediately – after receiving the county clerks’ petition. The court requested that legal briefs be filed by Sept. 23, according to the court clerk.
Daniel Ivey-Soto, an Albuquerque lawyer and executive director of the New Mexico County Clerks Affiliate, said the monthlong gap between when the briefs are filed and when the hearing is held will give justices the chance to thoroughly study the issue.
“The fact the Supreme Court acted in one day on this shows they recognize the necessity for clarity in the law,” said Ivey-Soto, who is also a Democratic state senator.
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 experts. That uncertainty has led to a range of legal interpretations.
Gay marriage advocates argue the state constitution’s equal protection clause trumps state law that requires “male” and “female” to be listed on marriage application forms and allows for same-sex marriage.
That view was backed by District Judge Alan Malott of Albuquerque in an Aug. 26 order that compelled the Bernalillo and Santa Fe County clerks to issue marriage licenses.
Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, which brought the Bernalillo County lawsuit on behalf of six same-sex couples, said Friday that the state should officially treat same-sex couples the same way it treats others.
“We welcome the Supreme Court’s order and hope that it will lead to a speedy decision establishing the freedom to marry for all same-sex couples in New Mexico,” Simonson said in a statement.
Doña Ana County Clerk Lynn Ellins was the first clerk to begin issuing marriage licenses to gay and lesbian couples, on Aug. 21.
Seven Republican state lawmakers subsequently filed a lawsuit in Doña Ana County that aims to halt the licenses from being issued and claims Ellins overstepped his legal authority. That case is still pending.
A total of 915 marriage licenses had been issued to same-sex couples in New Mexico as of earlier this week.