Clerk hoping for Supreme Court decision

By Kevin Baird

CMI staff writer

Curry County Clerk Rose Riley said she will do what the state tells her to do about issuing same-sex marriage licenses. That doesn’t mean she necessarily will agree with the decision.

Riley was one of 31 county clerks across the state who agreed Wednesday to take legal steps to try to get a uniform statewide policy on gay marriage statewide rather than having the issue decided piecemeal through county-by-county lawsuits.

The move by the local officials clears the way for an appeal to the Supreme Court that could provide a statewide decision on whether gay marriage is legal.

“I just want clear direction from the state,” Riley said. “I am not afraid to say that Curry County is not going to issue same-sex marriage licenses until the law forces us to do that.”

Riley said allowing same-sex marriage is like, “opening Pandora’s box. If they can force county clerks into giving same sex-marriage licenses what’s next? Incestual marriage? Bestiality? Where does it stop? … I think it’s wrong. It doesn’t matter what I think. It matters what the law says.”

The gay marriage issue was ignited last week when Dona Ana County Clerk Lynn Ellis began issuing marriage licenses to same-sex couples. District Judge Alan Malott further pushed the issue into the limelight earlier this week when he ruled that it was unconstitutional to deny gay and lesbian couples a marriage license. The defendants in the case, including the Bernalillo and Santa Fe county clerks, hadn’t planned to appeal.

“I feel like the law did not change when the Dona Ana County Clerk decided to issue licenses,” Roosevelt County Clerk Donna Carpenter said. “It had not gone through the due process of law. Hopefully this (a Supreme Court decision) will put it back in the hands of lawmakers.”

The ambiguity of the law concerning same-sex marriage in New Mexico is the reason why some counties are allowing same-sex marriages and others are not. New Mexico law doesn’t explicitly prohibit or authorize gay marriage. However, state statutes include a model marriage license application that has sections for male and female applicants and there are other references in the marriage laws to “husband” and “wife.” Such provisions have been cited by county clerks historically in denying marriage licenses to same-sex couples, and Attorney General Gary King’s office has said state law effectively prohibits gay marriages.

New Mexico Association of Counties President Wendell Bostwick said at the request of county clerk’s affiliate the NMAC’s attorney is drawing-up paperwork asking the Supreme Court to intervene in a Bernalillo County same-sex marriage suit by clearly defining whether same-sex marriages are constitutionally legal in New Mexico.

Bostwick said NMAC is also asking the Supreme Court to clarify “male” and “female” language on marriage licenses.

“It’s potential litigation that we’re trying to avoid,” Bostwick said. He said the counties don’t want to be sued for issuing marriage licenses they shouldn’t, or they don’t want to be sued for withholding marriage licenses they should have given.

Bostwick said the paperwork should be filed by Tuesday and he is hopeful the Supreme Court will make a decision within a few weeks.

Bostwick said NMAC does not hold a stance on same-sex marriage.

The Associated Press contributed to this report.

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