At issue is the fact that the form for a marriage license application has spaces for a man and woman — nothing for male/male or female/female licenses.
So despite there being no law on the books in New Mexico saying same-sex marriage is allowed or disallowed, there is no legal way for same-sex couples to get married in New Mexico. Despite same-sex marriage being legalized in one county for a handful of hours in 2004.
It was a county clerk in Dona Ana County, Lynn Ellins, that prompted state Rep. Bill McCamley, D-Mesilla Park, to ask the AG to rule on the legality of same-sex marriage.
From Ellins’ letter to McCamley:
Under a 2004 AG’s opinion, county clerks statewide are prohibited form issuing such licenses. If and when a new opinion is issued that allows the issuance of such licenses, my office stands ready to begin doing so.
Bernalillo County Clerk Maggie Toulouse Oliver, a Democrat widely considered a top-tier candidate for the Secretary of State position, says she personally supports same-sex marriage. But she agrees that unless the law is changed, she cannot issue marriage licenses to same-sex couples.
“According to City Attorney Zamora’s opinion, neither the constitution nor the marriage statute prevent same-sex couples from getting married,” Toulouse Oliver said in a statement. “However, the statute that puts forth the form of the marriage license application requires a male and a female applicant. The most recent legal guidance from the State Attorney General’s office on this issue is that the statute in question (NMSA 40-1-18) prevents a clerk from issuing a license to a male/male or female/female couple.”
Toulouse Oliver notes she is not a policy maker — that responsibility falls to the state legislature, which has been unable to decide the issue one way or another.
Buzzfeed spoke to the Santa Fe County Clerk who agreed they did not have the authority to do so.
“He’s the city attorney. I have a county attorney who I seek legal counsel from. In addition to that, the city attorney is not the attorney general. I, as a county clerk, do not have the authority in my eyes and in my interpretation and in my counsel. In my mindful process of this whole thing, I don’t have the authority — and why should I do it for a few hours when really we should have solid laws benefiting all citizens of the state of New Mexico?” [Geraldine Salazar] noted.
The Clovis News Journal spoke to the county clerks in Curry and Roosevelt counties (these are two of the more conservative areas of the state).
“When I was elected I took an oath to uphold the laws of the state of New Mexico,” [Curry County Clerk Rosalie] Riley said Wednesday. “So until the Attorney General comes out and says to issue those … we are not going to issue marriage licenses to person of the same sex.”
Roosevelt County Clerk Donna Carpenter said it’s clear in a state law that the form to obtain a marriage license has a place for a female applicant and a male applicant.
“It is required in the statute that we use that form,” Carpenter said. “I’ve instructed my staff to not issue same-sex marriage licenses. It’s not state law.”
In Otero County, clerk Denise Guerra also said she would not issue licenses. Guerra opposes same-sex marriage on religious grounds.