The clerks announced the lawsuit on Thursday.
Executive Director of the New Mexico County Clerks Affiliate Daniel Ivey-Soto plans to file a writ of superintending control, a legal mechanism to move the case before the the Supreme Court, on behalf of the intervening clerks in the case.
Ivey-Soto, who is also a Democratic New Mexico state senator in addition to leading a nonprofit representing the interests of the clerks, told TPM on Friday that the goal is for the state Supreme Court to issue guidance on whether clerks have to issue licenses to same-sex couples.
Over the last week a number of clerks have begun issuing licenses to same-sex couples. Some of those clerks have acted independently while others have begun issuing licenses only after a judge ruled that they had to. Hundreds of same-sex couples have flocked to courthouses in counties where clerks have begun issuing licenses.
On Friday, New Mexico's Los Alamos County clerk was ordered to begin issuing licenses or appear before court next week and argue why she should not have to do so. Sharon Stover, the clerk in question, told TPM she is reviewing the order with her attorneys.
Since the first clerks began issuing licenses to same-sex couples last week, the question of whether gay marriage is legal in the state has loomed in the background. The state's law is ambiguous, and New Mexico Attorney General Gary King (D) argues that while the law bans gay marriage it also violates constitutional rights. New Mexico Gov. Susana Martinez (R) has said that the marriage license issue should be decided by voters and the state's judicial system rather than the county clerks.
Specifically, the confusion among the clerks is over the New Mexico statute on the text of marriage licenses. The licenses leave space for a "man" and a "woman" seeking to get married. Some of the clerks who have already issued licenses have printed new licenses that do not specify space for only one man or one woman.
New Mexico's Supreme Court has previously refused to hear gay marriage lawsuits before but Ivey-Soto hopes that given the recent developments and that all 33 county clerks (who include both Democrats and Republicans) now want guidance on the licenses, that will motivate the court to get involved.
"We're hoping that because we have a case with all 33 clerks and we have an order that applies to all county clerks we're hoping that the Supreme Court says this is the course we're going to and they're going to expedite the process," Ivey-Soto told TPM on Friday.
Ivey-Soto said that he and the clerks are trying to move "as expeditiously but as cautiously as possible."
Meanwhile, a group of Republican lawmakers in the state legislature are looking into possible legal action to prevent the clerks from continuing to issue marriage licenses to same-sex couples.