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Wednesday, March 20, 2013 - 1:34am
Santa Fe, NM (CNN) — The Democratic mayor of Santa Fe, New Mexico, announced on Tuesday he is now urging county clerks in the city to begin issuing marriage licenses to same-sex couples.
The mayor's action does not carry the force of law, though county clerks could honor his urging. Yet his action raises a controversial question: could he provoke New Mexico into becoming the 10th state in the nation to allow same-sex marriage?
Mayor David Coss explained his actions to CNN in a phone interview.
"We've issued an attorney's opinion, from the city attorney's office, saying that our analysis of the constitution and the statute of New Mexico show that there is no prohibition [against same-sex marriage]. And, just as a matter of equal rights, they should start issuing those licenses," Coss said.
"We think it's legal in New Mexico," Coss continued. Additionally, the city will also introduce "a resolution for the city council to encourage our clerks in New Mexico to start issuing licenses for same sex couples." That resolution will be introduced on March 27.
"We think it's legal, right now and they should start."
States that currently issue same-sex marriage licenses are Connecticut, New York, Iowa, Maryland, Maine, Massachusetts, New Hampshire, Vermont, Washington. The District of Columbia also allows for it.
According to the Santa Fe mayor, New Mexico's constitution and marriage statute are unspecific on gender, they do not explicitly forbid same-sex marriage and do not explicitly define marriage as between a man and a woman.
CNN contacted the office of New Mexico Gov. Susana Martinez -- a popular figure in Republican circles -- but did not receive a response.
A spokesman from the office of state Attorney General Gary King said they have not yet received a request for a formal opinion on the matter, so the office has not yet weighed in.
Yet the spokesman threw cold water on Coss' urging.
"The mayor of Santa Fe has no legal standing to tell the county clerks in the state of New Mexico to do anything," said Phil Sisneros.
"He can urge them all he wants. But...it has no legal effect," Sisneros added, explaining that the mayor cannot order the county clerks to issue the same-sex marriage licenses.
Yet Sisneros acknowledged the county clerks could voluntarily follow the mayor's insistence and begin to issue the licenses.
"They could if they wanted to," Sisneros said. "I think what everybody's missing here is, it's not the A.G.'s place, it's not the mayor's place, it's not the city attorney's place - it's the legislature's, the lawmakers. The law has to be changed or specified so that you can have the force of law. But as I understand it now, that is not in the law. It's not specific."
Coss' actions may falter against opposition. He acknowledged he does not know how state officials will respond. He also acknowledged opposition from local and national groups.
Yet Coss said he is encouraged by some of King's actions. The attorney general signed on to a brief in support of same-sex marriage. And, in 2011, the attorney general issued an opinion that same-sex marriages performed in other states could be recognized in New Mexico.
However, King's opinion also does not have the force of law, Sisneros said, though the lack of absolute clarity on marriage reciprocation has caused some -including the mayor and his city attorney-to state unequivocally that New Mexico does recognize same-sex marriages performed in other states.
According to the group Freedom to Marry, which advocates nationwide support for same-sex marriage, a county in New Mexico tried to push for marriages there in 2004, but those efforts were beat back.
The Santa Fe mayor's actions come amid high profile support for same-sex marriage. Among the recent proponents are President Barack Obama, former president Bill Clinton and wife, Hilary Clinton as well as other prominent current and former officials, including Republicans.
The Supreme Court will tackle the issue as it hears oral arguments later this month.