N.M. legislators may file challenge to marriage equality in Las Cruces

Posted on 23 Aug 2013 at 11:36am
Las Cruces

Las Cruces, N.M.

Another 40 same-sex couples married in Dona Ana County, N.M. on Thursday, the second day County Clerk Lynn Ellins was issuing marriage licenses to gays and lesbians.

While the county viewed the licenses as legal and the marriages as valid, it remained unclear what the status of those marriages was outside the county, according to the Las Cruces Sun-News.

The Santa Fe New Mexican reported, however, that about two dozen Republican legislators plans to file a lawsuit to stop the county clerk.

New Mexico marriage laws are gender neutral and there is no prohibition of same-sex marriage. Only divorce law mentions husband and wife. So, as in other marriage-inequality states, obtaining a divorce will be a problem.

Unclear is how the federal government will view these marriages since this is the only state where marriage-equality is not statewide.

But just as unclear is who would have standing to challenge the marriages. In San Francisco, when Mayor Gavin Newsom began performing same-sex weddings, the state stepped in and issued an injunction. In 2004, Sandoval County, just north of Albuquerque, issued more than 60 marriage licenses to same-sex couples before a court injunction stopped it after about a month and invalidated the marriages.

New Mexico Attorney General Gary King announced he would not intervene. The governor also opposes same-sex marriage and said she would like the issued decided by voters. But she’s given no indication she will step in to stop the Ellins.

The Prop 8 ruling in June made it clear that for someone else to intervene, they would have to first convince a court that they had standing by having suffered some injury as a result of someone else getting married.

The state lawmakers plan to file a lawsuit claiming Ellins doesn’t have a right to change the law, only the legislature does. However, Ellins did not make or change the law. New Mexico law does not prohibit same-sex marriage.

Meanwhile, in anticipation of a run for Santa Fe mayor, former New Mexico Democratic Party Chair Javier Gonzales came out as gay. And editorials in the state’s newspapers are running in favor of  and against other county clerks doing the same thing.

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