Judge orders clerk to issue same-sex marriage license

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Law > Los Alamos couple files suit in district court

By The Staff

A district judge ordered Los Alamos County to issue a same-sex marriage license to residents Janet Newton and Maria Thibodeau Thursday.

Newton and Thibodeau filed a complaint in district court Wednesday after being denied a license by County Clerk Sharon Stover on Tuesday.

“As I understand, she (Stover) told our clients that she had no authority to issue a marriage license,” said Kate Ferlic, whose firm is representing Newton and Thibodeau. “Our clients said it was legal in six counties and they would like to get married in their home county.”

According to the suit filed in First Judicial Court, Newton and Thibodeau asked for a writ of mandamus or court order requiring the clerk to issue them a marriage license.

District judge Shari Raphaelson signed that order Wednesday.

And as of Wednesday night, Stover said that County Attorney Rebecca Ehler has the complaint but has not yet seen the writ. If the county does not abide by the order, a hearing is scheduled for Sept. 4.

Before the order was signed by the judge, Stover was asked what she would do.

“I need to see what the suit says and see what our county attorney says,” Stover said. “The way the law is, this needs to get fixed.”

Stover hopes some help is on the way.

County clerks across New Mexico on Thursday, meanwhile, joined a lawsuit that allowed same-sex couples to be married, and the move by the local officials clears the way for an appeal to the Supreme Court that could provide a statewide decision on whether gay marriage is legal.

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.
Stover also clarified her position.

“For me it’s not about the same-sex marriage issue,” Stover said. “It’s about ensuring there are good laws and there is uniformity across the state.”

Ferlic said the state Supreme Court has been asked twice to weigh in on the controversy and both times they have declined.

The Los Alamos case may provide a possible route for an appeal to the state Supreme Court.

Lawsuits have led to judges ordering clerks in Bernalillo, Santa Fe and Taos counties to issue marriage licenses to gay and lesbian couples. Clerks in three other counties — Dona Ana, San Miguel and Valencia — are granting licenses without court orders.

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.

“I’m not authorized to change the law,” Stover said. “That’s something the legislature is going to do or a judge would say something.”

Ferlic, meanwhile, was asked why her clients didn’t just go to Santa Fe to get a license.

“They want to get married in Los Alamos,” Ferlic said.

Stay tuned to LAMonitor.com for the latest developments on this story.