All 33 counties in New Mexico filed a joint petition in the state's Supreme Court this week seeking clarification on the legality of same-sex marriage in the state. Since a rogue clerk began issuing same-sex marriage licenses two weeks ago, the state has become embroiled in multiple lawsuits, some of which have resulted in county clerks being court-ordered to distribute marriage licenses to same-sex couples.
The lawsuit filed Thursday by the New Mexico Association of Counties is seeking to stop independent lawsuits regarding same-sex marriage from popping up throughout the state, as well as requesting that the five justices temporarily halt pending district court lawsuits regarding same-sex marriage until the Supreme Court case is resolved and a statewide, uniform decision is made. The state's Supreme Court has not yet indicated if it will take the case or not, but in the past it has refused to consolidate or halt pending lawsuits regarding to same-sex marriage.
"The bottom line is we're looking for a uniform answer," Steve Kopelman, general counsel for the coalition of counties, told the Associated Press of the lawsuit. "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," he added.
Santa Fe County Clerk Geraldine Salazar told the Albuquerque Journal that all of the state's clerks are seeking some form of direction to determine whether they would suffer legal recourse should they follow suit and begin distributing marriage licenses to same-sex couples. "We want some direction, we think it's important," Salazar said.
Daniel Ivey-Soto, executive director of the New Mexico County Clerks Affiliate, added to the local newspaper that county clerks are seeking to avoid lawsuits that may be filed against them if they refuse to sanction a same-sex marriage. "Instead of getting picked off one by one, the county clerks decided they need an answer. County clerks need to know what is their responsibility."
The petition filed by the counties also argues that the scattered sanctioning of same-sex marriages throughout the state has not been cost-effective for individual counties. For the past two weeks, seven counties have been issuing same-sex marriage licenses, either on their own will or because they were court-ordered to do so after same-sex couples filed lawsuits. An eighth county will begin issuing licenses in the coming weeks. So far, 915 marriage licenses have been issued in New Mexico since August 21, the most recent being issued in larger counties such as Santa Fe County and Bernalillo County.
The state's current battle over same-sex marriage began on August 21 when Dona Ana County Clerk Lynn Ellins began issuing same-sex marriage licenses, arguing that the state's laws are "gender neutral" and therefore do not expressly prohibit same-sex marriage. Shortly after, a district judge in Bernalillo County, which encompasses Albuquerque, ordered its county clerk to issue same-sex marriage licenses after a couple sued, arguing they were being discriminated against when they were not given a marriage license. Around the same time, a Santa Fe judge also ruled that its county clerk had to issue same-sex marriage licenses or return to court to explain why they chose not to do so.
New Mexico's law on marriage has not been updated since 1961. Unlike other states, there is no statute or explicit ban on same-sex marriage in New Mexico. Marriage license forms and the state statute do, however, make reference to a "male" and "female" gender, and county clerks have referenced these guidelines in the past as a reason for denying same-sex marriage licenses.
Fifteen Republican lawmakers have filed a lawsuit against Dona Ana County Clerk Ellins, arguing that he overstepped his authority by issuing same-sex marriage licenses without the permission of legislature. Several Republican lawmakers, including Sen. William Sharer of Farmington, have also announced their plans to file a friend-of-the-court brief in the Supreme Court case, urging the justices to rule against the redefinition of marriage.
"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," Sharer, who is also named in the lawsuit against Ellins, told the Associated Press.
All of the state's clerks have agreed to have their names listed on the brief petitioned to the Supreme Court. The state consists of 12 Republican and 21 Democrat clerks.