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Republican lawmakers join New Mexico legal fight against gay marriage

A box of cupcakes are seen topped with icons of same-sex couples at City Hall in San Francisco, June 29, 2013. REUTERS/Stephen Lam
A box of cupcakes are seen topped with icons of same-sex couples at City Hall in San Francisco, June 29, 2013. REUTERS/Stephen Lam

By Zelie Pollon

SANTA FE, New Mexico (Reuters) - Republican lawmakers in New Mexico lined up on Tuesday to join the legal fight against gay marriage in the state, arguing that a county clerk who voluntarily began issuing licenses to same-sex couples last month overstepped his authority.

New Mexico state law does not expressly permit or prohibit gay unions, and Doña Ana County Clerk Lynn Ellins began handing out marriage licenses to gay couples two weeks ago, saying he believed "equal protection should apply to everyone."

With that move, and a pair of legal rulings in favor of same-sex marriage elsewhere in the state, at least six counties have begun issuing licenses to gay and lesbian couples in recent weeks, including counties that encompass Albuquerque and arts hub Santa Fe.

On Tuesday, as opponents of gay marriage sought to stall momentum toward allowing gay marriage across the state, eight Republican lawmakers joined in a lawsuit filed on Friday by seven other Republican lawmakers against the Doña Ana clerk.

"It's really a separation of powers issues," said Representative Paul Bandy, who on Tuesday joined the case filed in district court. "I don't think the county clerk has the power to make this decision."

The state's attorney general said at the time he would not step in to stop the Doña Ana clerk's move.

The lawsuit follows a pair of rulings over the past two weeks that appeared to strongly favor the right of same-sex couples to marry and which gay rights advocates hope will set the stage for expanding marriage rights statewide.

Thirteen U.S. states and the District of Columbia allow same-sex marriage.

GENDER-BASED DISCRIMINATION

In New Mexico's Bernalillo County, which includes Albuquerque, a state district court judge ruled last month that denying gay couples the right to marry violates the state constitution, which prohibits gender-based discrimination and guarantees the right to equal protection.

"Gay and lesbian citizens of New Mexico have endured a long history of discrimination," Judge Alan Malott ruled. "Denial of the right to marry continues this unfortunate, intolerable pattern and establishes irreparable injury on plaintiffs' part."

That ruling in late August came just days after a Santa Fe district judge ruled that the state constitution did not prohibit gay marriage, and ordered a clerk to either issue such licenses or appear in court to explain why she could not.

The New Mexico Supreme Court has so far declined to rule on lawsuits seeking the right for gays and lesbians to marry, but asked lower courts to handle them first.

As the battle over gay marriage heated up last week, all 33 of New Mexico's county clerks submitted court papers in the case decided by Malott, asking to have it escalated to the state Supreme Court so a decision would apply statewide, said ACLU of New Mexico Executive Director Peter Simonson.

Some of the clerks agree that same-sex marriage should be allowed under the state constitution and some disagree, he said.

"We believe that the county clerks intervening in our lawsuit puts New Mexico on an expedited path towards a statewide marriage solution which would provide more certainty for the same-sex couples who married in our state," Simonson said.

Political analyst Brian Sanderoff, president of politically independent Research and Polling Inc, said that in targeting the Doña Ana county clerk with a lawsuit, the Republican lawmakers were acting where they "would have their best shot."

That is because there appears to be a legal question about whether that official had the right to issue same-sex marriage licenses without a prior court order.

Republican lawmakers could eventually be joined by conservative Democrats in putting a measure on the ballot to restrict marriage to between a man and a woman, Sanderoff said.

Democrats hold a majority in both the New Mexico House of Representatives and the state Senate.

(Additional reporting by Alex Dobuzinskis in Los Angeles; Editing by Ken Wills)

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