The lawsuit targets one southern New Mexico county — Dona Ana — but could provide another route for the dispute to reach New Mexico’s highest court for a final statewide resolution. The New Mexico Association of Counties and county clerks statewide have said they plan a separate appeal to the state Supreme Court to try to get a decision on whether gay marriage is legal in New Mexico.
Paul Becht, an Albuquerque lawyer for the GOP legislators, said Friday the lawsuit was filed in Las Cruces, where the Dona Ana County clerk’s office has issued more than 200 marriage licenses to gay and lesbian couples since last week.
Five other counties have taken similar steps, and Los Alamos County could become the seventh county to issue licenses.
A judge on Thursday ordered the clerk there to start granting marriage licenses to same-sex couples or to appear in court next week to explain why that shouldn’t happen. Los Alamos County Clerk Sharon Stover said the ruling is under review and no decision has been made on what will be done.
The lawsuit contends the Dona Ana County clerk exceeded his powers as a local official in issuing marriage licenses to same-sex couples. It’s up to the Legislature — not a county clerk — to change the law to provide for gay marriage, said Becht, a former state senator.
Ellins “has violated the New Mexico Constitution’s separation of powers doctrine by determining on his own which laws he will enforce based upon his interpretation of the statutes and constitution,” the lawsuit said.
Dona Ana County Clerk Lynn Ellins was not in the office Friday but said in a telephone interview that he was unaware of the lawsuit and couldn’t comment without reviewing it. He began issuing licenses on his own rather than in response to a court order.
Ellins, a lawyer, concluded the state’s marriage laws are “gender neutral” and don’t prohibit the county from issuing licenses to gay and lesbian couples.
New Mexico law doesn’t explicitly prohibit or authorize gay marriage, although the statutes include a marriage license application that has sections for male and female applicants. Other provisions in law refer to “husband” and “wife.” County clerks historically pointed to those provisions in denying marriage licenses to same-sex couples.
A district judge in Albuquerque ruled earlier this week that it was unconstitutional to deny a marriage license to same-sex couples. However, the ruling doesn’t apply to all 33 counties in the state.
The Association of Counties and county clerks expect to file an appeal of the judge’s decision next week with the Supreme Court. There’s no guarantee the high court will take up their appeal, however.
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