The legal maneuver by the clerks came as a judge in a separate case ordered the Los Alamos County clerk to issue marriage licenses to same-sex couples or to appear in court next week to explain why that shouldn't happen. That case also may provide a possible route for an appeal to the state Supreme Court.
Daniel Ivey-Soto, executive director of a group representing county clerks, said a district judge in Albuquerque allowed the New Mexico Association of Counties and 31 county clerks to intervene in the lawsuit.
The clerks and the association expect to file an appeal next week with the state Supreme Court, he said.
"The intent of the clerks is to get clarity in the law as quickly as possible both so the clerks understand their lawful responsibilities and so the public understands what is appropriate under New Mexico law or not appropriate under New Mexico law," said Ivey-Soto, a lawyer and Democratic state senator from Albuquerque.
District Judge Alan Malott earlier this week 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, however.
County clerks across the state 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.
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.
But King and gay marriage advocates contend the prohibition is unconstitutional, and Malott issued such a ruling—allowing for marriage licenses to be issued in Bernalillo County, the state's most populous county. A district judge's ruling doesn't apply statewide, however, and that's left advocates scrambling to find the proper way to get a gay marriage case before the Supreme Court.
The five justices recently have turned down two requests to take up the gay marriage issue, but neither of those were appeals from a lower court ruling—the most common procedure for a legal dispute to reach the state's highest court.
A same-sex couple from Los Alamos County, Janet Newton and Maria Thibodeau, filed their lawsuit after being denied a marriage license earlier this week. District Judge Sheri Raphaelson quickly ruled in their favor.
"We will continue to seek to bring these cases county by county as long we have clients that wish to pursue it and hopefully at some point sooner than later we'll get the Supreme Court to resolve the issue statewide," said Rep. Brian Egolf, a lawyer for the couple and whose firm handled a case that led to marriage licenses being issued to same-sex couples in Santa Fe County.
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