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Some New Mexico clerks opting to wait for judicial decisions on marriage equality

Marriage equality Marriage Equality Trials

New Mexico state sealYesterday, we reported on the decisions of three more county clerks in New Mexico to begin issuing marriage licensee to same-sex couples.  That means that at this point, six of the state’s 33 counties have marriage equality.

It’s worth noting that while the number of actual counties permitting same-sex couples to obtain licenses may remain small, the counties with marriage equality are some of the state’s most populous.  In fact, some 56 percent of New Mexicans live in one of the marriage equality counties.

Yesterday, I wrote a post asking what would be next for marriage equality in the state and pointing out the downsides of a county-by-county progression for equal marriage rights.  At this point, however, it appears that that is exactly what is going to happen.

According to the Farmington-based Daily Times, San Juan County Clerk Debbie Holmes will not issue marriage licenses until she is ordered to do so by a court:

Recently, several same-sex couples have asked San Juan County to consider issuing the licenses, said San Juan County Clerk Debbie Holmes. She said it should not be her decision whether or not to bring gay marriage to the area.

San Juan County has never issued marriage licenses to same-sex couples. Holmes said she has been advised by the county’s legal department not to issue them.

“I’m waiting for someone to sue me, and that’s certainly something they can do,” she said. “I feel like I need to follow the law as I’ve been told how to do it.”

The Albuquerque Journal quoted Sandoval County Clerk Eileen Garbagni as taking a similar position.  “I’m just going to wait until they call me and tell me otherwise,” Garbagni told the paper, while adding that she had determined based on the county attorney’s advice to wait for a judge’s decision.

According to the Daily Times, Peter Simonson, executive director of the ACLU of New Mexico, said that his organization’s position is that a judge’s decision on Monday requiring Benalillo and Santa Fe counties to issue licenses to same-sex couples should apply to clerks across the state.

But despite the ACLU-NM’s position, it seems most likely that couples in New Mexico’s non-marriage equality state will need to sue their county clerks and obtain judicial orders compelling the county officials to issue marriage licenses.  The only other option, at this point, is for the state Supreme Court to rule that all county clerks must institute marriage equality.  Until the latter occurs, we’re likely to see a whole lot more of the former.

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