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Updated: Second New Mexico County Clerk Issuing Marriage Licenses After Judge’s Order

By Josh Israel on August 23, 2013 at 3:04 pm

"Updated: Second New Mexico County Clerk Issuing Marriage Licenses After Judge’s Order"

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Santa Fe County Clerk Geraldine Salazar (D)

Santa Fe County Clerk Geraldine Salazar (D)

On the heals of one New Mexico county clerk moving to issue marriage licenses to same-sex couples, a state district judge issued an order Thursday suggesting she is likely to force another county to follow suit.

Judge Sarah Singleton ordered Santa Fe County Clerk Geraldine Salazar (D) to either issue marriage licenses to same-sex couples or appear in court on September 26 to explain why she should not have to. The Associated Press reported Friday that Salazar did not immediately respond to a request for comment on the matter.

In July, Salazar claimed in a filing that her refusal to issue such licenses “correctly followed the state’s marriage laws which, viewed in their entirety, clearly apply only to persons of opposite sex.” State Rep. Brian Egolf (D), who is the attorney for the plaintiffs seeking marriage licenses, noted at the time that Salazar has indicated that she personally supports marriage equality.

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.

Doña Ana County Clerk Lynn Ellins (D) announced Wednesday that his office would begin issuing marriage licenses to same-sex couples. About 90 couples have already taken advantage of that opportunity.

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.”

Update

Santa Fe County Clerk Salazar has begun issuing same-sex marriage licenses, following the judge’s order. In a statement, she said:
“Now that Judge Singleton has ordered me to issue a license to [the plaintiffs] on constitutional grounds, I intend to do so and to issue a license to any same-sex couple who desires one and are otherwise qualified. By complying with the judge’s order, we will be issuing licenses legally and will not continue to use limited county resources on further litigation.”

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