Judge orders New Mexico county to issue same-sex marriage licenses

A New Mexico judge on Monday declared same-sex marriage legal, ordering the clerk of the state's most populous county, Bernalillo, to join two other counties in issuing marriage licenses to gay and lesbian couples. The decision follows the Supreme Court's ruling in June that the Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages, was unconstitutional. 

State District Judge Alan Malott ruled that New Mexico's constitution prohibits discrimination on the basis of sexual orientation. The Bernalillo County Clerk's Office in Albuquerque planned to start issuing marriage licenses to same-sex couples at 8 a.m. Tuesday.

The decision came after a judge in Santa Fe directed the county clerk there to begin issuing marriage licenses to same-sex couples on Friday. But Malott's ruling was seen as having more impact because he explicitly declared that gay marriage was legal.

New Mexico has not passed legislation banning or specifically allowing same-sex marriage. On Feb. 20, 2004, Sandoval County Clerk Victoria Dunlap announced that she would begin issuing same-sex marriage licenses, since the state's marriage law did not specify gender. New Mexico's first same-sex marriage took place later that day.

Dunlap issued 66 licenses but stopped the same day. Patricia Madrid, New Mexico's then-attorney general, thought the licenses would be invalid, but a Santa Fe judge ruled in 2010 that at least one of the licenses was valid.

New Mexico has a law that recognizes any marriage license granted in another state. Thirteen states and the District of Columbia currently recognize same-sex marriage; six others allow civil unions or domestic partnerships.

Laura Schauer Ives, a lawyer for the American Civil Liberties Union of New Mexico, called Malott's decision "monumental" and said the group had not expected such a broad decision. The judge had been asked only to order that the state recognize on her death certificate a dying woman's marriage to her longtime partner.

But after a short hearing in which neither the counties nor the state objected to the request, Malott also ruled on the broader lawsuit by that couple and five others seeking marriage licenses.

"We were stunned and amazed," Ives said.

However, it's uncertain whether clerks in the state's 30 other counties, who were not defendants in the lawsuit, would use the judge's ruling as a signal that they could also issue marriage licenses to same-sex couples. State Assistant Attorney General Scott Fuqua said the decision was not binding on clerks outside Bernalillo and Santa Fe counties.

Malott's order came during a hearing seeking an order for the state to recognize the marriage of Jen Roper, who has cancer, to Angelique Neuman.

The couple wed at a Santa Fe hospital after a state district judge in a separate case ordered the Santa Fe County clerk to issue same-sex licenses. The clerk of Dona Ana County in southern New Mexico decided on his own last week to recognize gay and lesbian marriages.

"It's been a long, long fight," Neuman said. "I'm glad things went our way."

The couple last week joined the lawsuit brought by the ACLU on behalf of five other lesbian couples.

Christine Butler of Albuquerque, who opposes gay marriage and attended the hearing, said the judge's ruling violates her rights.

"I don't want to bring my children or go to places and see same-sex couples showing a lot of affection," Butler said. "That's against God's law."

Bernalillo County Clerk Maggie Toulouse Oliver said she had 1,000 licenses printed in case Malott ordered her to issue them for same-sex marriages. Her office spent the day preparing for what is expected to be a flood of applicants Tuesday.

On Monday morning, couples were lined up in Santa Fe waiting for the clerk's office to open. More than 100 licenses had been issued by the end of the day, bringing the number of same-sex marriage licenses issued since Friday to 157.

Lynn Ellins, clerk of Dona Ana County, which includes Las Cruces, began issuing marriage licenses to same-sex couples last Wednesday. He said 137 couples from around the state and from neighboring Texas were issued licenses last week and more were in the works Monday.

Al Jazeera and The Associated Press