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Counties ask NM high court to decide gay marriage

Todd Crawford, left, and Jimmy Huckaby, embrace after receiving their marriage license at the Santa Fe County Clerks Office, Friday Aug. 23, 2013 in Santa Fe, N.M. The county clerk in the New Mexico state capital and the heart of this state’s gay rights movement began issuing marriage licenses to gay and lesbian couples Friday, a court-ordered move that came just two days after a county clerk on the other end of the state decided on his own to recognize same-sex marriage. (AP Photo/The Albuquerque Journal, ) THE SANTA FE NEW MEXICAN OUT; MANDATORY CREDIT: EDDIE MOORE/THE ALBUQUERQUE JOURNAL (Eddie Moore/Associated Press/Albuquerque Journal)

Todd Crawford, left, and Jimmy Huckaby, embrace after receiving their marriage license at the Santa Fe County Clerks Office, Friday Aug. 23, 2013 in Santa Fe, N.M. The county clerk in the New Mexico state capital and the heart of this state’s gay rights movement began issuing marriage licenses to gay and lesbian couples Friday, a court-ordered move that came just two days after a county clerk on the other end of the state decided on his own to recognize same-sex marriage. (AP Photo/The Albuquerque Journal, ) THE SANTA FE NEW MEXICAN OUT; MANDATORY CREDIT: EDDIE MOORE/THE ALBUQUERQUE JOURNAL (Eddie Moore/Associated Press/Albuquerque Journal)

JT, left, and Cassandra Perez wait in line to speak during a Doña Ana County Commissioners meeting on Tuesday Aug. 28, 2013 in Las Cruces, N.M. Commissioners, in a 4-1 vote, passed a resolution in support of the county issuing same-sex marriage licenses. The couple was married on August 21, 2013 after County Clerk Lynn Ellins chose to issue same sex-marriage licenses. (AP Photo/Las Cruces Sun-News, Robin Zielinski)

Patricia Catlett, 61, left, and Karen Schmiege, 69, of Albuquerque, receive their same-sex marriage license Tuesday, Aug. 27, 2013 at the Albuquerque clerk’s office in New Mexico as officials started issuing same-sex marriage licenses. The couple were the first to receive the license after the Bernalillo County Clerk joined clerks from the state’s other two population centers in recognizing same-sex unions when a judge Monday declared gay marriage legal in New Mexico. (AP Photo/Russell Contreras)

Natalie Williams Love, left, and partner Caryl Williams Love walk out of a cubicle where they received their marriage license on Tuesday, Aug. 27, 2013, in Albuquerque, N.M. The county clerk opened her door Tuesday to a line of more than 100 people waiting to get same-sex marriage licenses following an Albuquerque judge’s declaration Monday that gay marriage was legal. (AP Photo/The Albuquerque Journal, Roberto Rosales)

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SANTA FE, N.M. (AP) — New Mexico’s 33 counties asked the state’s highest court Thursday to decide whether gay marriage is legal in the state and to stop the spread of lawsuits that have forced some county officials to start issuing marriage licenses to same-sex couples.

The New Mexico Association of Counties and clerks statewide filed a petition seeking clarity in a legal dispute that has changed rapidly in the past two weeks since a southern New Mexico clerk independently began issuing marriage licenses to gay and lesbian couples.

Since then, seven other counties followed — some because of court orders in response to lawsuits by same-sex couples.

More than 900 marriage licenses have been granted to gay and lesbian couples in the state, according to the lawsuit.

It remains uncertain whether the Supreme Court will accept the case.

“The bottom line is we’re looking for a uniform answer,” said Steve Kopelman, general counsel for the county group. “There’s a controversy here. This is not a simple issue legally. But we’re not weighing in on the moral issue. We’re weighing in on the law.”

New Mexico law doesn’t explicitly prohibit or authorize gay marriage. However, the marriage laws — unchanged since 1961 — contain a marriage license application with sections for male and female applications. There also are references to “husband” and “wife.”

The current and previous state attorneys general have said the law effectively prohibits gay marriage, although current Attorney General Gary King also has said he believes such a prohibition is unconstitutional.

A state district court judge in Albuquerque last week ruled it is a violation of New Mexico’s constitution to deny marriage licenses to same-sex couples. The judge based his decision on a 1972 constitutional amendment adopted by voters that prohibits discrimination “on account of the sex of any person.”

Two county clerks that were defendants in that case decided not to directly appeal the judge’s ruling. However, the county association and the state’s 31 other county clerks — including several already issuing marriage licenses to same-sex couples — joined the lawsuit to provide a way to quickly move the gay marriage question to the Supreme Court.

The five justices previously turned down efforts by gay rights advocates to get a ruling on the marriage issue. The advocates had attempted to get a decision by filing lawsuits directly with the Supreme Court rather than through an appeal of a lower court decision.

The counties procedurally are asking for a special order from the Supreme Court rather than filing a traditional appeal that would take longer to resolve, said Daniel Ivey-Soto, a lawyer for county clerks and a Democratic state senator.

Their petition says the clerks who are not issuing marriage licenses need “clarity of the law” to proceed with their obligations and “object to assumed constitutional interpretations for which there is no precedent.”

The counties also asked the justices to temporarily halt pending district court lawsuits on gay marriage until they make a statewide decision on the issue.

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Follow Barry Massey on Twitter at https://twitter.com/bmasseyAP

Associated Press

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