New Mexico attorney general asks high court to reject same-sex marriage
July 08 2004 12:00 AM ET
New Mexico attorney general Patricia Madrid is urging the state's highest court to reject a county clerk's request to issue more marriage licenses to same-sex couples. Madrid, in written arguments filed Tuesday with the state supreme court, asked the justices to toss out a pending request from Sandoval County clerk Victoria Dunlap. Dunlap wants the supreme court to dismiss a temporary restraining order
preventing her from handing out more same-sex marriage licenses. However, Madrid said Dunlap's case is legally and procedurally flawed because it failed to provide any grounds for the court to decide the question of whether New Mexico law authorizes same-sex marriages. The court hasn't ruled on Dunlap's request or scheduled a hearing in the case. Dunlap issued more than 60 marriage licenses to same-sex couples on February 20 but stopped when Madrid declared that gay marriages were not legal under state law.
The supreme court justices had directed the attorney general to file written arguments responding to Dunlap's petition. The court typically seeks responses from parties in a case before determining how to proceed. Dunlap contends New Mexico laws support same-sex marriages and that she should be allowed to resume issuing licenses to gay couples. The attorney general says state law limits marriage in New Mexico to a man and a woman. In arguments filed with the supreme court, Madrid said the issue of same-sex marriage "will ultimately be decided when a party with standing brings an action challenging New Mexico's laws or if the legislature changes the law. It should not be decided in the context of this case, involving a county clerk that is leaving office shortly."
Dunlap, whose term expires at the end of the year, contends that a temporary restraining order against her has been in place too long and can't remain in effect. Madrid disagreed, however. She said the supreme court, in a March 31 order, extended a restraining order that had been granted by a district court after Dunlap threatened to resume issuing marriage licenses to same-sex couples. The justices "maintained the status quo and stayed the issuance of same-sex marriage licenses until the district court ruled, in a final order subject to appeal, on Dunlap's authority to issue such licenses," Madrid argued. The same-sex-marriage dispute remains pending in a case before state district judge Louis P. McDonald. The supreme court's March 31 order, Madrid said, is not subject to rules and time limits that govern district court procedures for restraining orders in civil cases.
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