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.
Since then, seven other counties followed – some because of court orders in response to lawsuits by same-sex couples.
More than 900 marriage licenses have been granted to gay and lesbian couples in the state, according to the lawsuit.
It remains uncertain whether the Supreme Court will accept the case.
“The bottom line is we’re looking for a uniform answer,” said Steve Kopelman, general counsel for the county group. “There’s a controversy here. This is not a simple issue legally. But we’re not weighing in on the moral issue. We’re weighing in on the law.”
New Mexico law doesn’t explicitly prohibit or authorize gay marriage. However, the marriage laws – unchanged since 1961 – contain a marriage license application with sections for male and female applications. There also are references to “husband” and “wife.”
The current and previous state attorneys general have said the law effectively prohibits gay marriage, although current Attorney General Gary King also has said he believes such a prohibition is unconstitutional.
A state district court judge in Albuquerque last week ruled it is a violation of New Mexico’s constitution to deny marriage licenses to same-sex couples. The judge based his decision on a 1972 constitutional amendment adopted by voters that prohibits discrimination “on account of the sex of any person.”
Two county clerks that were defendants in that case decided not to directly appeal the judge’s ruling. However, the county association and the state’s 31 other county clerks – including several already issuing marriage licenses to same-sex couples – joined the lawsuit to provide a way to quickly move the gay marriage question to the Supreme Court.
The five justices previously turned down efforts by gay rights advocates to get a ruling on the marriage issue. The advocates had attempted to get a decision by filing lawsuits directly with the Supreme Court rather than through an appeal of a lower court decision.
The counties procedurally are asking for a special order from the Supreme Court rather than filing a traditional appeal that would take longer to resolve, said Daniel Ivey-Soto, a lawyer for county clerks and a Democratic state senator.
Their petition says the clerks who are not issuing marriage licenses need “clarity of the law” to proceed with their obligations and “object to assumed constitutional interpretations for which there is no precedent.”
The counties also asked the justices to temporarily halt pending district court lawsuits on gay marriage until they make a statewide decision on the issue.
Sen. William Sharer, a Farmington Republican, said he and other lawmakers plan to file a friend-of-the-court brief with the Supreme Court urging it to stop same-sex marriages.
“The people that believe that marriage is between a man and a woman for the very first time are going to have a voice in court,” he said. Sharer also is among a group of Republicans who filed a lawsuit in Dona Ana County to try to block the clerk there from continuing to grant marriage licenses to same-sex couples.