A third county in New Mexico will allow same-sex couples to marry, the result of a state judge's ruling Monday that any prohibition of gay marriage in the state is “unconstitutional and unenforceable.”
The ruling came almost a week after one county said it would issue marriage licenses to same-sex couples, citing the fact that New Mexico has no law explicitly allowing or banning gay marriage. The state's Democratic attorney general said he wouldn't challenge that move, and on Friday another state judge ordered officials in Santa Fe County to begin issuing marriage licenses to same-sex couples. (See Stateline map)
Taken together, the events in the three counties – in Bernalillo, which includes Albuquerque, and Santa Fe, which includes the city of Santa Fe, and Dona Ana – mean same-sex marriage has been effectively legal in the state for nearly a week. Because couples in New Mexico don't have to apply for a marriage license in the county in which they live, many have traveled to areas where the licenses are being issued and have gotten married there. Some couples have even come from Texas, where gay marriage is banned, to get married.
More than 200 couples have gotten licenses so far, and nothing is legally stopping other counties from also issuing licenses, although many have said they won't or are unsure whether they should. Opponents, including Republican state lawmakers, have pledged to file suit to stop local officials, but so far no action has been taken.
The developments Friday and Monday are in some ways more significant than the decision last Wednesday by the Dona Ana County Clerk's office to begin issuing same-sex marriage licenses. That was based on the clerk's judgment that state law didn't forbid him from issuing them. But even Attorney General Gary King, in announcing he wouldn't oppose the move, said it left the county and any married couples in a legally precarious situation without the backing of a court ruling.
Same-sex couples gaining marriage licenses in Santa Fe and Bernalillo counties, meanwhile, came as the result of a pair of court rulings that found no prohibition in state law on couples being allowed to marry, decisions that reflected the original county clerk's judgment.
The week's developments are just the latest in a tangled history of the gay marriage debate in New Mexico, and the lack of court rulings on the issue has left the matter up for debate for years. The state is the only one in the U.S. without a law that bans or allows same-sex marriage or civil unions and the state's marriage statutes are seen as gender neutral.
Almost a decade ago, the ambiguity came to a head in 2004 when 66 same-sex couples received marriage licenses when a Sandoval County Clerk decided to approve them. Then-Attorney General Patricia Madrid ordered the clerk to stop after eight hours, and the issue was in limbo ever since.
Attorney General King's decision this time to not block the licenses sets these developments apart. In a statement explaining its position, the attorney general's office reiterated its position that same-sex couples are better off waiting for a final determination on the state's gay marriage laws, but also said it wouldn't stand in the way of couples receiving licenses in the meantime.
The Democratic attorney general has said the state's practice of not allowing same-sex couples to marry is unconstitutional, but has asked county officials to wait for courts to decide the issue once and for all, and it's possible the issue will eventually reach the state Supreme Court.
Since 2004, meanwhile, the state neither moved to solidify its ban on gay marriage nor approved a measure to allow them. Democrats control the legislature but have been unable to coalesce around the issue. Gov. Susana Martinez, a Republican, is opposed. Polls in the state have showed plurality support for the unions, and the state does recognize same-sex marriages performed elsewhere.
Now, advocates have taken advantage of the ambiguity to advance their cause. Following the U.S. Supreme Court's ruling that struck down the federal Defense of Marriage Act and California's Proposition 8 ban on same-sex marriage, a raft of lawsuits have been filed challenging state gay marriage bans nationwide, including several in New Mexico.
The rulings in Santa Fe and Bernalillo counties are the result of two of those efforts, which were backed by the American Civil Liberties Union. Dona Ana County Clerk Lynn Ellins, on the other hand, took it upon himself to issue licenses to same-sex couples.
“It is clear that the state's marriage statutes are gender neutral and do not expressly prohibit Dona Ana County from issuing marriage licenses to same-gender couples,” he said. “Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act."
Courts adopting that language could go a long way toward solidifying the gains of the past week gay marriage supporters. But there could still be a public backlash, especially as some bristle at courts and local officials deciding an issue as emotionally charged and controversial as gay marriage.
In 2004, for example, Sandoval County Clerk Victoria Dunlap, who issued the licenses then, was censured by her own Republican Party and defeated in a primary challenge by a 4-to-1 margin.