Second NM Judge Orders Clerk To Issue Marriage Licenses To Gay Couples


Same-sex marriage efforts in New Mexico took another step forward Monday with yet another state judge ruling that a county clerk could issue marriage licenses to same-sex couples.

The ruling, in a Bernalillo County case, is the second in the last week in which a state court judge has empowered a county clerk to sanction same-sex marriages. The county clerk in yet a third county began issuing licenses on his own last week.

On Monday afternoon New Mexico District Judge Alan Malott ordered Bernalillo County Clerk Maggie Toulouse Oliver to issue marriage licenses to same-sex couples, according to the Associated Press. Malott’s ruling comes a week after county clerks in Doña Ana County and Santa Fe County each began issuing marriage licenses to same-sex couples. When one of the couples in the case originally applied for a license from Oliver, they were denied, prompting the lawsuit filed by the ACLU in March. The case has been pending since then.Oliver told TPM that she was sympathetic to the couple’s request when she was approached but that the state’s statute on gay marriage clearly prevented a same-sex couple from getting married. Oliver noted that the case does not end with Monday’s ruling.

“Ultimately whatever happens with the case will further determine what the rest of the state does,” Oliver said Monday. “The purpose of the entire case is to establish the constitutionality of the marriage license statute.”

The statute at the center of the case pertains to the New Mexico marriage license form which lists space for one “male applicant” and one “female applicant.”

A week ago, Lynn Ellins, the Doña Ana County county clerk, who is a Democrat, began issuing marriage licenses to same-sex couples. According to Ellins, he got fed up with the progress of the state moving toward legalizing same-sex marriage in the state after, months earlier, New Mexico Attorney General Gary King (D) interpreted the state’s ambiguous marriage law as banning gay marriage but also unconstitutional. Two days later a judge in a separate case ruled that Santa Fe County Clerk Geraldine Salazar (D) had to issue a marriage license to a gay couple. Since then Salazar and Ellins have continued to issue marriage licenses to same sex couples. Ellins said that his office issued 134 marriage licenses last week. On Friday afternoon Salazar’s office reported that it had issued 45 licenses.

A number of same-sex weddings have been performed since the clerks began issuing licenses. In one marriage, Angelique Neuman was able to quickly marry Jen Roper, who has a deadly type of brain cancer.

Ellins said his decision to start issuing same-sex marriage licenses spurred Santa Fe County Clerk Geraldine Salazar, also a Democrat, to follow suit and not just issue licenses to the couple in the case in question.

“Lawyers who know more about the judiciary and what goes on in Santa Fe had decided that they better move before this crazy clerk in Dona Ana gets a lousy decision,” Ellins told TPM on Monday, jokingly referring to himself.

Meanwhile, a group of Republican lawmakers led by state Sen. Bill Sharer (R) have vowed to fight take legal action to block the clerks from continuing to issue the licenses. Sharer and his allies had been planning to file a simple injunction to block Ellins, but after Salazar began issuing licenses as well, Sharer and his group began to regroup. Sharer, who previously pushed unsuccessful amendments to keep New Mexico from defining marriage as anything other than between one and one woman, said he hoped to file a new effort to block the clerks as early as Friday.

Don’t expect King or New Mexico Gov. Susana Martinez (R) to get involved in the cases any time soon. Both have indicated that they don’t plan to block the clerks. But Martinez also opposes legalizing same-sex marriage. King, who plans to run for governor in 2014, says New Mexico’s law bans same-sex marriage but also violates equal protection guarantees under the U.S. Constitution. He does not plan to defend the state’s gay marriage law in court.