Chaves County’s clerk would be bound by law to begin issuing licenses to same-sex marriages within the next few weeks if New Mexico’s Supreme Court determines gay marriage is legal across the state.
“Since I’m an elected official, and sworn to uphold the constitution, we would have to sell them,” said Clerk Dave Kunko. “I’m sworn to do that, if they determine that’s what I have to do.“
Kunko was one of 31 New Mexico county clerks to intervene in the petition to the high court, asking for it to consider issuing a clarification of state law.
The Supreme Court heard Wednesday from lawyers representing the county clerks, the state attorney general and gay rights advocates. The five justices will issue a decision in the next few weeks.
If justices rule that state law allows gay marriage, Kunko said he is obligated to follow that decision.
“It is actual state constitution and state laws we’re talking about,” Kunko said.
The action to begin selling licenses from the county complex would be significant.
“Should they determine we have to sell them, it would be the first time for anything like this,” Kunko said.
The clerk’s office hasn’t received many calls from local residents interested in purchasing gay marriage licenses in the past few weeks, Kunko said.
But after Doña Ana County Clerk Lynn Ellins suddenly began issuing the licenses to same-sex couples Aug. 21, thus setting off a chain reaction of events that led up to Wednesday’s high court action, Kunko’s office had several harassing calls from northern New Mexico.
The clerks’ lawyer, Daniel Ivey-Soto, told the justices a uniform rule was needed.
“Mainly what the clerks wanted to do by filing this action, we mainly wanted to get on the same page,” Kunko said.
The clerks asked the New Mexico Association of Counties to file the action in early September after a number of judges and counties began to blaze their own trails in interpreting the state marriage licensing law.
After Ellins began issuing gay marriage licenses, a judge ordered the Santa Fe county clerk to provide licenses to same-sex couples two days later.
On Aug. 23, an order was issued, directing the Taos county clerk to issue gay marriage licenses. The next day, clerks in Valencia and San Miguel counties started selling gay marriage licenses on their own initiative. Those clerks were later ordered by the court to continue the practice.
On that same day, the Los Alamos clerk was ordered to begin issuing the licenses. On Sept. 3, the Grant County clerk was served an order to sell licenses to same-sex couples.
To date, some 1,500 gay marriage licenses have been issued in the state.
New Mexico’s marriage laws, first passed by the Territorial Legislature in 1860, at first did not contain any gender specific references. The language used the word “couple” to those entering into marriage until 1909.
In 1934, the state’s high court clarified that in New Mexico, marriages were defined by statutes and not common law. In 1961, the state Legislature passed a law that contained an application, license and certificate of marriage. This has not been changed.
The 1961 law contained the words “bride” and “groom” and “male applicant” and “female applicant” in the application portion, and “groom” and “bride” in the marriage certificate portion.
But in 1972, by a vote of 70 percent of New Mexicans, the state constitution was changed to include the words, “equality of rights under law shall not be denied on account of the sex of any person.”
Attorney General Gary King—a Democrat—contends that the 1961 marriage law is unconstitutional.
The American Civil Liberties Union and the National Center for Lesbian Rights represented same-sex couples Wednesday.
State Sen. William Sharer, R-Farmington, said a constitutional amendment will be needed to resolve the gay marriage issue regardless of the outcome of the court case.
“No matter what their decision is the issue will not be settled until the people speak,” Sharer said after the hearing.
The Associated Press contributed to this story.