Clerks: Law says no on same-sex marriage

Clerks in Curry and Roosevelt counties aren't budging on their position against same-sex marriage licenses.

Clerks in both counties said Wednesday they are following state law when they say no to same-sex marriage licenses. And no means no, according to Curry County Clerk Rosalie Riley, despite efforts by others to convince county clerks otherwise.

County clerks say they cannot legally issue same-sex marriage licenses because the application form, created by the state Legislature, includes only spaces for a male applicant and a female applicant.

"When I was elected I took an oath to uphold the laws of the state of New Mexico, " Riley said Wednesday. "So until the Attorney General comes out and says to issue those ... we are not going to issue marriage licenses to person of the same sex."

Roosevelt County Clerk Donna Carpenter said it's clear in a state law that the form to obtain a marriage license has a place for a female applicant and a male applicant.

"It is required in the statute that we use that form," Carpenter said. "I've instructed my staff to not issue same-sex marriage licenses. It's not state law."

Santa Fe Mayor David Coss and a city council member are encouraging county clerks to issue marriage licenses to same-sex couples anyway. And they insist it is legal to do so.

Coss and Councilor Patti Bushee say they will introduce a resolution March 27 "recognizing" that same-sex marriage is legal in New Mexico.

Bushee and Coss also released a memo from City Attorney Geno Zamora, who said same-sex marriage is legal because state law defining marriage is gender-neutral and lacks any prohibition on same-sex marriage.

Zamora said the state already recognizes same-sex marriages from other states and the New Mexico Constitution requires equal treatment on the basis of sex. Dona Ana County Clerk Lynn Ellis is trying to force the issue, asking and getting a state legislator to request an opinion from Attorney General Gary King.

A spokesman for King said the attorney general would welcome the opportunity.

Application for marriage license

King is being asked to clarify an opinion issued in 2004 by his predecessor Patricia Madrid that concludes "no county clerk should issue a marriage license to same-sex couples because those licenses would be invalid under current law."

The Madrid opinion is cited by Riley and Carpenter, both noting the conclusion stating the Legislature adopted a marriage application form that requires a male applicant and a female applicant only.

The Curry County Commission is also on record against same-sex marriage in a 2004 resolution adopted three months after Madrid's opinion was released and another 2009 resolution.

"At the end of the day, the law is what determines it," said Riley.

Riley said on a personal level, she hasn't reached a decision on same-sex marriage.

"I've had people of both walks of life work for me," Riley said. "They are wonderful people. I don't know. I really don't know.

"I see both sides of everything," Riley said. "I just don't want to judge anybody. But I will follow the rules."

— The Associated Press contributed to this report.