April 18 (Bloomberg) -- When a New Mexico county clerk began issuing marriage licenses to same-sex couples in 2004, Mary Houdek and her longtime partner Norma Vasquez were the first in line.
The women, among 64 same-sex couples allowed to wed in Sandoval County before commissioners sued to halt the practice, have been in limbo ever since. New Mexico, whose voters backed a Republican governor in 2010 and President Barack Obama, a Democrat, in the past two presidential elections, is the only U.S. state that has no law related to same-sex marriage or civil unions.
Now, as the U.S. Supreme Court weighs gay marriage for the first time, two lesbian couples recently denied marriage licenses are suing in state court. The case is the first since the 2004 lawsuit, which was dropped, and it may eventually determine whether other gay couples in New Mexico can wed.
“I think the time has come -- and it came a long time ago,” Houdek, 64, said in a telephone interview from her home in Rio Rancho.
The case in New Mexico, where legislative proposals to allow and ban gay marriage both failed this year, comes as public opinion nationwide is shifting toward acceptance of same-sex relationships. Support for gay marriage has increased in every state in the U.S. by an average of almost 14 percent since 2004 when it was legalized in the first state, Massachusetts, according to a study released this month by the Williams Institute, a public policy think-tank at the University of California, Los Angeles law school. It found 47 percent support in New Mexico, up from 38 percent.
New Mexico had the seventh-highest concentration of same-sex couples in the country in 2010, according to an analysis of U.S. Census data by the Williams Institute. There were 5,825 same-sex couples living in the state, or 7.4 for every 1,000 households, compared with 5.5 per 1,000 households nationwide.
The lawsuit by the American Civil Liberties Union was filed two weeks after the Supreme Court heard arguments in same-sex marriage cases. In one involving the legality of California’s Proposition 8 ban, approved by 52 percent of voters in 2008, the court is considering whether the U.S. Constitution gives same-sex couples the right to wed. The high court is also reviewing the constitutionality of a federal law, the 1996 Defense of Marriage Act, which defines marriage as a heterosexual union and prohibits gay spouses from claiming federal benefits. The court may rule on the cases by the end of June.
Thirty-eight states prohibit same-sex marriage either in their constitutions or statutes. Nine states and Washington, D.C., allow it, including three states where voters authorized it last year. Rhode Island and New Jersey also don’t have a law one way or the other; they are among nine states that offer equivalent spousal rights through civil unions or domestic partnerships, according to the Washington-based Human Rights Campaign. That includes Colorado, which voted last month legalized same-sex civil unions.
Lawmakers in Rhode Island, Delaware, Minnesota and Illinois are considering measures to allow gay marriage while a measure to ban it in Indiana has stalled, said Marty Rouse, national field director for the HRC.
“New Mexico is almost a picture of America today regarding same-sex marriage,” said Rouse. “It’s a state that is teetering in the middle.”
Push to Legalize
This year brought the first strong push to legalize gay marriage there after lawmakers had rejected bans year after year, he said.
“It is clear the momentum is on the side of marriage equality,” he said.
Last month, Santa Fe Mayor David Coss and Councilor Patti Bushee introduced a resolution asserting that gay marriage is legal under state law and calling on county clerks to issue marriage licenses to same-sex couples. Attorney General Gary King, a Democrat, is weighing the issue and is expected to release an opinion soon, spokesman Phil Sisneros said in an e-mail. The New Mexico Conference of Catholic Bishops reiterated its opposition to gay marriage on March 27. The state is more than one-fourth Catholic, according to a 2008 report from the Pew Forum on Religion and Public Life.
“Protecting the institution of marriage from new definitions we believe guards this institution which is unique and irreplaceable,” the bishops wrote in their statement, which also called for respect and tolerance of homosexuals.
Denying marriage licenses to gay couples violates their rights to equal protection under New Mexico’s constitution, the ACLU alleged in its complaint filed March 21 in state court in Albuquerque. The plaintiffs were turned down for marriage licenses by the Bernalillo County Clerk’s office because they were the same gender, according to the complaint.
Maggie Toulouse Oliver, the county clerk named as the defendant in the case, said that while she supports gay marriage, New Mexico law requires that a marriage license application be completed by one male and one female applicant.
“That’s been the basis of why I and my fellow clerks have not issued them,” Oliver said in a March 21 phone interview. The marriages of the so-called “Sandoval 64” are considered valid, she said. The state also recognizes same-sex marriages from other states after a 2011 opinion from King.
The content of the marriage license form doesn’t trump the protections in the state’s constitution, said Elizabeth Gill, staff attorney with the LGBT and AIDS project at the ACLU in San Francisco.
“New Mexico has a long history of respecting the rights of individuals and freedom for all folks,” she said.
The state’s protections for gay residents include one of the country’s first anti-discrimination laws to include both sexual orientation and gender identity. That 2003 law has made the state a focal point for opponents of gay marriage in a case involving a photographer who refused to shoot a lesbian commitment ceremony in 2006. The owner of Elane Photography in Albuquerque was ordered to pay almost $7,000 in attorney fees for violating the law. Two lower courts upheld that order.
The case, pending before the New Mexico Supreme Court, is about discrimination and has nothing to do with gay marriage, Gill said. Opponents of same-sex marriage, though, see the case as a warning about how legalized gay marriage could impact religious freedom, citing it in at least three amicus briefs filed in the U.S. Supreme Court cases, said Jim Campbell, legal counsel for Alliance Defending Freedom, a Scottsdale, Arizona-based Christian legal group representing the photographer in the New Mexico case and Proposition 8 proponents in the Supreme Court case.
“People are paying attention to it because it illustrates some of the religious liberty concerns with same-sex marriage,” Campbell said. “If a case like that can arise in a state that doesn’t recognize same-sex marriage, it would be far more likely and far more difficult to defend against in a state that recognizes gay marriage.”
For Houdek, clarity on New Mexico law is overdue. She said her marriage is not always recognized. When her wife, who she has been with for 26 years this month, added her to her state employee health insurance they were treated as domestic partners.
“We are not able to technically use our marriage license for anything, but it is fully legal,” Houdek said. “It’s not right. I know loving, committed couples and they should have the same legal status as we do.”
The ACLU case is Griego v. Oliver, New Mexico Second Judicial District Court, County of Bernalillo (Albuquerque). The photographer’s case is Elane Photography LLC v. Willock, 33,687, New Mexico Supreme Court (Santa Fe).