LAS CRUCES — Republican legislators in New Mexico will challenge a Doña Ana County clerk’s decision this week to issue marriage licenses to same-sex couples.
Republican Sen. William Sharer of Farmington said a lawsuit will be filed, potentially by the end of the week, seeking a court order to stop County Clerk Lynn Ellins.
“It has to do with a county clerk cannot make law. That is the Legislature’s job,” said Sharer, who sponsored a constitutional amendment in 2011 to define marriage as between a man and woman.
He said more than two dozen GOP lawmakers have agreed to join the lawsuit. It likely will be filed with the state Supreme Court, but Sharer said lawyers were trying to decide the best legal strategy.
Democratic Attorney General Gary King, who plans to run for governor next year, said Thursday he won’t take action against the Doña Ana clerk. But he told The New Mexican that legislators probably would have legal standing to challenge Ellins’ action.
Meanwhile, gay and lesbian couples flocked to Southern New Mexico for a second day Thursday to take advantage of a surprise decision to issue same-sex marriage licenses. And most were tying the knot on the spot, making sure they got their long-awaited marriage certificates before any courts or state officials could interfere.
“We wanted a piece of paper that said, ‘Yes, the 20 years have not been in vain,’ ” said Thom Hinks of Albuquerque.
Hinks said he and his partner, Richard Sunman, spent much of their three-hour drive discussing whether to get married immediately in Las Cruces on Thursday or use the license to have a better-planned ceremony somewhere else in the state.
They said they decided to do it right away, remembering that Sandoval County Clerk Victoria Dunlap — who issued marriage licenses to 66 gay couples in 2004 — was quickly stopped from issuing more licenses.
“All it would take is for a judge to issue an edict and strike it down,” Hinks said.
Republican Gov. Susana Martinez, while saying voters should decide whether gay marriage should be legal, did not indicate she planned to do anything to try to halt the practice as cases testing the legality of same-sex marriage work their way through the state Supreme Court.
The gay marriage issues pose political risks for candidates in New Mexico, which leans Democratic in statewide voting but has many moderate to conservative Democrats in rural areas.
“Issues like immigration, abortion and gay marriage, those are issues that sometimes statewide candidates want to keep away from. Just the fact that both Gary King and the governor haven’t exactly come out gangbusters on this issue demonstrates that they recognize it’s a double-edge sword that plays both ways,” said Brian Sanderoff, an Albuquerque pollster.
Martinez has said she personally opposes same-sex marriage but believes that voters should decide whether to legalize gay marriage through a constitutional amendment. King’s office has said that state law prohibits same-sex marriage, but those restrictions are unconstitutional.
Pat Davis of ProgressNow New Mexico, a liberal advocacy group, said gay marriage may not become a big political issue if it’s resolved by the state Supreme Court well before next year’s elections.
Otherwise, the Democratic-controlled Legislature will face pressure to approve a constitutional amendment, which would put the issue on the November ballot and make it a high-profile topic for voters.
“And then I think all bets are off,” Davis said “I think it does become an issue no matter what.”
Ellins began issuing same-sex marriage licenses Wednesday after he said his review of state law allowed him to do so. By Thursday afternoon, more than 70 licenses had been issued.
Most of the couples were from New Mexico, Ellins said. But a few crossed state lines.
Monica Corral and Luz Saenz said they came from nearby El Paso, even though their marriage won’t be legal in Texas.
They said they just wanted to make the lifelong commitment, and “hopefully I will live long enough to see it happen in Texas,” said Saenz.
County and city officials around the country have taken it upon themselves in recent years to issue same-sex licenses, with one of the first and most highly publicized cases in San Francisco in 2004. The city issued the licenses for about a month before being ordered by courts to stop. The marriages were eventually invalidated. But gay marriage is now legal in that state.
Doña Ana County became the first county in New Mexico to actively issue same-sex licenses since a Sandoval County clerk issued 64 licenses to same-sex couples in 2004. Then-Attorney General Patricia Madrid soon declared the licenses were invalid and a court later ordered the clerk to stop.
New Mexican reporter Steve Terrell contributed to this report.