The New Mexico supreme court is reviewing a petition from the state attorney general asking for an order to halt a county clerk's imminent plans to issue marriage licenses to same-sex couples. "We are asking the New Mexico supreme court to require the Sandoval County clerk to follow the law and not issue any same-sex marriage licenses," Atty. Gen. Patricia Madrid said Tuesday. The court was reviewing the petition on Wednesday, but no hearing was immediately scheduled, a court clerk said. Sandoval County clerk Victoria Dunlap, who issued 66 marriage licenses to gay and lesbian couples February 20, has said she plans to resume issuing licenses on Friday after a temporary restraining order expires. The order was issued a week ago by a judge who subsequently withdrew from the case, leaving open a window for same-sex couples to obtain licenses until another judge can be appointed.
Dunlap's attorney, Paul Livingston, said the language of New Mexico law is gender-neutral and avoids the mention of a man, woman, husband, wife, male, or female. "The supreme court should carefully consider what it is doing before it joins the legions of the intolerant and bigoted groups who disdain and humiliate those among us who would engage in nontraditional but nonetheless loving relationships, hopes, and aspirations," Livingston said. He called Madrid's actions "a campaign of injustice and avoidance of due process, equal protection, and the legislatively adopted policy of gender-neutrality." If the high court agrees to the stay requested by Madrid, then Dunlap "of course will comply," Livingston said. "We don't defy the supreme court, and we adhere to any stay that the supreme court imposes," he said.
Madrid said she is not asking the court to decide the issue of the legality of gay or lesbian marriage but only whether a county clerk "has the authority to make law herself or to rule on the constitutionality of existing law in New Mexico. It's my position she doesn't have that authority." The attorney general acknowledged that the withdrawal Monday of Judge Kenneth Brown from the case on which he made his March 23 ruling "has caused us a few problems." Livingston's refusal to agree to expedite the selection of a new judge, which could close the window of opportunity for gay couples, means a longer, slower process of judicial selection by computer and assignment by a court clerk. Madrid acknowledged that without intervention by the high court, "there's a possibility there could be a hiatus in which Victoria Dunlap would not be precluded" from issuing marriage licenses to same-sex couples. The attorney general asked the court for an emergency "writ of mandamus," which asks the court to command Dunlap to cease plans for the licenses. Madrid said she expects to hear from the court quickly regarding whether they will consider such a writ. "These are extraordinary writs, and they are not usually resorted to, but because of the timing, we felt it was necessary," Madrid said. She said there are 32 other county clerks who need guidance from the court.
Madrid elaborated on her view of state marriage law, saying Tuesday that a 1961 application form "is part of the statute." That application refers specifically to "male applicant" and "female applicant," she said. However, Livingston says, the 1961 form is outdated. A health examination mentioned on the form is no longer required, he noted. Furthermore, he said, the marriage law says only that the form should be substantially like the 1961 form. He says that's not the stuff of which mandamus writs are made.