UPDATE SEPT. 6: New Mexico's 33 counties asked the state's highest court this week to decide whether gay marriage is legal in the state and to stop the spread of lawsuits that have forced some county officials to start issuing marriage licenses to same-sex couples.
The New Mexico Association of Counties and clerks statewide filed a petition seeking clarity in a legal dispute that has changed rapidly in the past two weeks since a southern New Mexico clerk independently began issuing marriage licenses to gay and lesbian couples.
New Mexico county clerks began issuing marriage licenses to same-sex couples. Within one week, gay couples were marrying in at least six counties, even though judicial orders only applied to four counties and a case remained before the state Supreme Court.
“Our state is now on the brink of joining the growing list of states who … honor the values of family, liberty and love,” said ACLU of New Mexico executive director Peter Simonson said. “This is a great day to be a resident of New Mexico. Every family in this state is made richer by this step toward justice for all.”
The first licenses were issued in Doña Ana County, where county clerk Lynn Ellins said he felt compelled by the state constitution to treat couples who want to marry – regardless of their gender – equally. The state constitution says, “No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under the law shall not be denied on account of the sex of any person.”
“It’s a happy office today,” Ellins said. “Lots of happy people. One of the first couples that came in today said they had been waiting 31 years. Another couple says they’ve been waiting 43 years. It’s time to stop waiting.”
New Mexico Attorney General Gary King said there would be no challenge to Ellins’ initiative and, two days later, a district court judge ordered Santa Fe County Clerk Geraldine Salazar to issue marriage licenses to same-sex couples who sought them.
A judge also ordered Bernalillo County Clerk Maggie Toulouse Oliver to issue licenses to gay couples. State law “does not preclude nor prohibit issuance of a marriage license to otherwise qualified couples on the basis of sexual orientation or the gender of its members . . . to the extent the (statutes) may be read to prohibit issuance of a marriage license to otherwise qualified same-sex couples, those prohibitions are unconstitutional and unenforceable under (the) Constitution of New Mexico,” Judge Alan Malott wrote in his judgment.
Laura Schauer Ives, with ACLU New Mexico, called the order “monumental.”
Oliver said she was eager and ready to follow it, with more than 1,000 gender-neutral licenses printed.
On Aug. 27, about 100 people assembled at the Bernalillo County Courthouse in Albuquerque to get licenses froam the clerk. Some took their vows in a ceremony at noon in Albuquerque’s Civic Plaza.
“Twenty years ago, my sister was a witness at my wedding,” said Stacy Orlovsky. “Neither one of us ever thought I’d witness her wedding. But there she was, marrying her partner after 28 years of being together. This is a beautiful, beautiful day.”
Later that day, clerks in San Miguel and Valencia counties announced they’d be issuing licenses to same-sex couples.
And then there was another judicial ruling and Taos County Clerk Anna Martínez began issuing licenses to same-sex couples.
“At one point you had to wonder if there were any unmarried gays left in the state,” said Frank MacDonald of Albuquerque, who is single and straight but joined the celebration in the plaza.
Republican lawmakers have sued to stop the clerks from issuing licenses to same-sex couples.
New Mexico Sen. Willi Sharer, who repeatedly has proposed anti-gay marriage amendments, said the Legislature makes laws, not county clerks or district judges.
“A county clerk simply should not be allowed to create law out of thin air,” said Sharer, referring specifically to Ellins. “There is a way to change the law – little dictators should not be allowed to act as the sole lawgiver in a free society. My opposition to the county clerk is based on the simple fact that he is not the dictator.”
New Mexico statutes do not specifically say that same-sex couples can marry, as do statutes in 13 states and the District of Columbia. But New Mexico statutes also don’t specifically state that same-sex couples cannot marry.
The state Supreme Court has been asked to rule on the matter, but it also is possible that the Legislature, which convenes for a 30-day session in January, will take up marriage.
Ther’s a similar situation in Pennsylvania, where an elected court clerk in the Philadelphia suburbs has been handing out marriage licenses to same-sex couples for more than two months.
Now a court has to decide whether the clerk has singlehandedly added Pennsylvania to the growing list of states that formally sanction same-sex marriages or whether he’s acting illegally.
As WiG headed to press, a hearing was underway in Harrisburg that pits Gov. Tom Corbett’s Health Department against D. Bruce Hanes, Montgomery County’s register of wills.