Doña Ana County’s clerk began issuing same-sex marriage licenses Wednesday in a bold move, saying it was time to end the wait.
Clerk Lynn Ellins sent a surprise email about his decision to county clerks across the state before opening his doors.
“I was shocked,” said Chaves County Clerk Dave Kunko.
Ellins said he had followed lawsuits pending in district court since and a recent brief that Attorney General Gary King submitted to the state Supreme Court.
He also read New Mexico state laws that he concluded did not prohibit Doña Ana County from issuing the marriage licenses.
King’s brief, he said, declared the validity of such marriages within the state.
“Once I read the attorney general’s brief, in which he has officially taken the position that such marriages are legal, I decided it’s about time I moved forward,” Ellins said.
The court cases could take as much as six months to be decided, he said.
The first two same-sex couples to walk into the clerk’s office within an hour had waited long enough, he said.
“It’s interesting. The first couple that came in was waiting 31 years to do this,” Ellins said. “Another couple, in an hour, was waiting 43 years. So, I thought it was about time to end the wait.”
Until the surprise move, clerks around the state agreed to follow the state constitutional law that does not allow for same-sex marriage licensing.
“I guess he sees the inaction of the attorney general and by the (state) Supreme Court as time for him to take action,” Kunko said. “I feel that I have sworn to uphold the constitution and state laws of New Mexico and, at this time, I don’t feel any of it directs us to issue those. There is no possibility that we will do that.”
A few couples had wandered in to the Chaves County clerk’s office seeking a license after Sandoval County clerk issued 64 licenses in 2004.
“We’re not going to do it,” Kunko said. “We’ll send them to Doña Ana County.”
By noon, some 15-18 couples sought the same-sex licenses from Doña Ana. Ellins expected many more Wednesday afternoon.
The City of Roswell came under fire by gay-rights supporters in mid-July after one councilor proposed a resolution that would have declared marriage as a union between a man and a woman. The resolution failed in committee.
Ellins received support following his action, he said.
“I’ve received phone calls and emails from lots of people who are pleased that we are doing this,” Ellins said. “I haven’t received any negative reaction, but that would not surprise me at all.”
King said he would not take any action against Ellins. But his position is that the current state law is unconstitutional.
“We previously advised that is was not a good idea to issue the marriage licenses to same-sex couples due to the uncertain status of state law,” King wrote in a statement. “We do not have authority over county clerks.”
As the situation evolves, King would determine his response at the appropriate time, he said in the statement.
After Doña Ana County’s action, the American Civil Liberties Union of New Mexico filed an emergency request with the state’s 2nd Judicial District Court to allow two women to legally marry in Santa Fe County. The group claimed one of the women suffered from terminally-ill brain cancer.
“We agree that it’s unconstitutional to deny same-sex couples the ability to marry in New Mexico,” said ACLU-NM Legal Director Laura Schauer Ives in a statement. “We understand the urgency same-sex couples in New Mexico feel to get married. At the same time, we want to be sure that same-sex couples understand that we will not have certainty until our state courts have the opportunity to weigh in on the issue.”
On Tuesday, a same-sex couple from Santa Fe asked the New Mexico Supreme Court to streamline the handling of lawsuits seeking to legalize gay marriage in the state. If all cases were consolidated, a ruling by a district court judge in Santa Fe could go directly to the state Supreme Court for review.
Ellins said if the state declares his action to allow the issuance of same-sex marriage licenses illegal, he fully expected that if the cases go before the state Supreme Court, the court would rule same-sex marriages legal.
“If it should work out, it works out,” Ellins said. “Otherwise then, these people are not legally married and they are back to where they were.”
The Associated Press contributed to this report.