Doña Ana, New Mexico, County Clerk Lynn Ellins (D) announced Wednesday that his office would begin issuing marriage licenses to same-sex couples. The move comes days after the state’s Supreme Court declined to expedite a marriage equality case, saying the case should first go to a lower court.
New Mexico has no constitutional prohibition on same-sex marriage and no explicit statutory ban — but still has not previously allowed the practice. A recent review of state codes by state Attorney General Gary King (D) found that while some statues implicitly require that marrying couples include one male and one female, the equal protections required by the state’s constitution render these rules unconstitutional. King said he would not fight any lawsuit demanding same-sex marriage equality.
Noting the Attorney General’s advisory opinion, Ellins decided he would not wait for the case to wend its way through a lengthy judicial process:
After careful review of New Mexico’s laws it is clear that the state’s marriage statutes are gender neutral and do not expressly prohibit Doña Ana County from issuing marriage licenses to same-gender couples. Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act. Doña Ana County is upholding New Mexico law by issuing these marriage licenses, and I see no reason to make committed couples in Doña Ana County wait another minute to marry.
For a few hours, a Sandoval, New Mexico county clerk allowed same-sex marriages in 2004. Sixty-four couples married in that brief window, but their status has never been fully resolved by the state courts.
Like the U.S. Constitution’s 14th Amendment, New Mexico’s state constitution guarantees that no citizen shall be denied “equal protection” of the law. Justice Anthony Kennedy cited this protection in his June majority opinion striking down the federal Defense of Marriage Act. New Mexico’s constitution also guarantees that “equality of rights under law shall not be denied on account of the sex of any person.”
Doña Ana County, population 214,445, is home to Las Cruces.
Attorney General King will not attempt to halt the same-sex marriages, the Santa Fe New Mexican reported Wednesday night, but noted that legislators or other Doña Ana officials might have legal standing to do so.