Lynn Ellins, The County clerk for New Mexico’s second largest county, Doña Ana County, has begun issuing same sex marriage certificates as of 8am MST today. New Mexico is the only state in the Union which has nothing in its statutory law or constitution dealing with same sex marriage, and NM’s marriage law is gender neutral, i.e. it describes as valid a marriage between any two “persons” who are not close relatives, of a certain age, not already married to somebody else, etc.
County Clerk Ellins said that he has been considering issuing licenses since last June, when New Mexico Attorney General Gary King issued a position paper stating that New Mexico’s de facto “ban” on issuing marriage licenses to same-gender couples is unconstitutional. Since then, the Attorney General - in a legal brief to the New Supreme Court - has refused to defend the ban and has asked the Supreme Court to declare New Mexico’s prohibition of same-gender marriage unconstitutional under the state’s constitution.
Last week, Ellins said, the New Mexico Supreme Court declined to issue a ruling sought by attorneys for same-gender couples seeking marriage licenses from the county clerks in Bernalillo and Santa Fe counties. Instead, the Supreme Court sent these matters back to the lower courts for an initial review on the merits.
“That means it could be many months or years before the matter is resolved,” Ellins said. “In the meantime, I am mindful that I took an oath of office to uphold the Constitution of the State of New Mexico as Doña Ana County Clerk. I am an attorney, and I have read the AG’s opinion, and I find it to be sound. After careful review of New Mexico’s laws it is clear that the state’s marriage statutes are gender neutral and do not expressly prohibit Doña Ana County from issuing marriage licenses to same-gender couples. Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act. Doña Ana County is upholding New Mexico law by issuing these marriage licenses, and I see no reason to make committed couples in Doña Ana County wait another minute to marry.”
I have a feeling this will spread to NM’s other large counties (Santa Fe, Bernalillo) within the coming days.
Santa Fe and Bernalillo County clerks have decided not to issue licenses yet pending advice from the Attorney General’s office.
Gary King, the Attorney General for New Mexico, has stated his office will not challenge the same-sex marriage licenses coming out of Dona Ana County and he states that any other county that wishes to issue same-sex licenses may do so.
New Mexico’s largest District Court may be forced to issue a fast ruling on the question of same-sex marriage licenses due to a petition from the ACLU for a New Mexico couple one of whom has terminal brain cancer and wants to marry her spouse before she dies. The couple are asking the Court for an expedited emergency ruling so that they can tie the knot before the cancer takes its toll. The NM Supreme Court punted on an earlier case, sending the decision on licenses to a lower court (which could take years to work out), but this one could heat things up very quickly.
As of now, it appears gay marriage licenses are de facto legal in NM. If anybody is thinking about getting a same-sex wedding in NM after reading this (hey, you never know) then I would strongly suggest building as much evidence as you can of your intent to do so, this could include wills, powers of attorney, property agreements, etc. This is just to be safe.