ALBUQUERQUE, N.M. — The decision by clerks in six of New Mexico’s most populous counties to start issuing marriage licenses to same-sex couples has added a sense of urgency to a fight that some of the state’s top political leaders had seemed in no hurry to join.
“It is time someone makes a decision that settles this debate,” said Maggie Toulouse Oliver, the clerk in Bernalillo County, where about a dozen same-sex couples were married during a group ceremony outside the county building here last Tuesday.
For years, state legislators have tried to settle the debate, with conservative Republicans introducing bills to describe marriage as a union between a man and a woman and liberal Democrats stalling those efforts or proposing bills of their own without gender-specific restrictions. None ever succeeded.
That has left New Mexico as the only state in the country that has no statute or constitutional amendment explicitly barring same-sex couples from marrying, but also no law saying they can. Since March, same sex-couples in three cities — Santa Fe, Albuquerque and Los Alamos — have filed lawsuits in an effort to get a clear ruling on the issue.
Gov. Susana Martinez, a Republican, has kept a dispassionate distance, affirming her personal opposition to same-sex marriage but saying the decision should be left to voters. In June, Gary King, the state’s attorney general and a Democrat, punted, telling reporters he was not going to take a public stance on the issue. More recently, he has said he would not challenge any county clerk who decided to issue marriage licenses to same-sex couples.
But as the time passed and the uncertainty lingered, some county clerks took matters into their own hands.
The first among them, Lynn Ellins of Doña Ana County — where Martinez began her political career — said he was tired of waiting when, on Aug. 21, he began issuing marriage licenses to same-sex couples from his office in Las Cruces, an increasingly liberal city in the largely conservative southern part of the state. Five other county clerks followed, though not until a court order gave them justification and permission, a move that also served to limit the legal options available to stop them.
The court order, which was issued Aug. 26 by an Albuquerque judge, Alan M. Malott, established that “implying conditions of sexual orientation on one’s right to enter civil contracts such as marriage” was a violation of the equal-protection clause in the state’s Constitution.
William Sharer, a Republican state senator from Farmington, in northern New Mexico, and the loudest voice of opposition, said that the court order “complicates things,” and he characterized the clerks’ moves as “pure lawlessness.” Still, late on Friday, Sharer sued Ellins to stop him from granting any more marriage licenses.
Terry McMillan, a Republican state representative from Las Cruces — who had considered joining Sharer’s lawsuit, but backed away because, he said, he was ultimately not opposed to same-sex marriage — conceded in an interview that marriage equality in New Mexico was “an inevitability.”
The clerks have shifted their focus to the state’s Supreme Court. They are joining one of the lawsuits filed by same-sex couples so they can appeal Judge Malott’s ruling, which is limited to Bernalillo and Santa Fe counties, both defendants in the lawsuit, and try to force a statewide resolution.
For their part, elected officials from both parties are contemplating the political price they may have to pay for their stance on same-sex marriage.