ALBUQUERQUE (KRQE) - A group of Republican state lawmakers filed suit Friday against the Doña Ana County clerk to stop him from issuing marriage licenses to same-sex couples.
County Clerk Lynn Ellins began issuing the licenses to gay couples last week in Las Cruces saying they were being discriminated against and that state law was gender-neutral on marriage licenses.
"I took an oath to support the New Mexico Constitution, I'm supporting it now," Ellins said at the time. "I've decided it's time we move forward, and hopefully the courts will catch up one of these days."
The courts are now catching up with Ellins but in the form of the lawsuit against him.
"His granting of licenses is what we call ultra vires, which means it's null and of no legal effect," attorney Paul Becht said.
Becht, an Albuquerque-based attorney, filed the lawsuit on behalf of seven Republican legislators.
The group said Ellins' decision on his own to start handing out marriage licenses to same-sex couples is illegal and needs to be stopped.
"He's essentially usurped the function of the Legislature. That is not permitted by the constitution," said Becht.
In a phone call late Friday night Ellins told KRQE News 13 he has not yet been served with the lawsuit but that he figured it was coming. He said he was actually surprised it took this long.
News 13 asked Becht about the delayed response.
"It took a lot of time to sit down and figure out what exactly the issues were and what exactly we could do about it," Becht said.
Ultimately the group of lawmakers, like proponents of gay marriage, wants to see the New Mexico Supreme Court take up the matter and issue a statewide ruling to put an end to the county-by-county patchwork system that now has six counties issuing the licenses.
"You've got this legal mess right now," said Becht.
Becht said seven more lawmakers have said they are willing to join the lawsuit.
He also said they are considering their options in Valencia and San Miguel Counties, where those county clerks also began issuing licenses without a court order.
Bernalillo, Santa Fe and Taos counties also are issuing same-sex marriage licenses in responses to judges' orders.
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