Copyright © 2013 Albuquerque Journal
SANTA FE – Sixteen years ago, gay and lesbian couples braved blowing snow and mid-February chill to gather outside the Capitol and exchange wedding vows before clergy and friends.
There were rings, kisses and teary eyes – but no licenses for the 31 couples. Legal same-sex marriage seemed an eternity away.
“A mockery,” one lawmaker called the 1997 ceremony, which included a lesbian couple who had just been turned away at the Santa Fe County Clerk’s Office. It was, the lawmaker said, “against motherhood and apple pie.”
The mass wedding shined a spotlight on a struggle for equal rights for gays and lesbians that has played out over decades in the Capitol.
But the recent issuance of marriage licenses to same-sex couples in six New Mexico counties wasn’t the result of a legislative edict: It bubbled up from local courthouses and courtrooms.
The Doña Ana County clerk led the way on Aug. 21, and five other clerks – either voluntarily or in response to judges’ orders – began issuing licenses to same-sex couples during the next two weeks.
Now, the central question of the legality of same-sex marriage in New Mexico might come up in the state Supreme Court as opponents challenge the validity of the licenses and county clerks around the state clamor for clarity.
“It’s really interesting how this has happened. … This is kind of decision-making from the ground up,” said former state Sen. Dede Feldman, a Democrat from Albuquerque.
It’s also a testament to the importance of elected officials who tend to get overlooked because they’re at the bottom of the ballot, she said.
“If you ever thought it didn’t matter who was in one of those positions, think again,” Feldman said.
State District Judge Sarah Singleton in Santa Fe was the first judge to weigh in, ordering County Clerk Geraldine Salazar on Aug. 23 to issue licenses to same-sex applicants or show up in court to explain why not. Salazar started issuing licenses the next day.
On Aug. 26, State District Judge Alan Malott in Bernalillo County ruled that the state Constitution protects same-sex marriages. His ruling was rooted in the passage four decades ago of a provision aimed at combating discrimination against women.
The Equal Rights Amendment, approved by New Mexico voters in 1972 and effective in 1973, says simply that “equality of rights under the law shall not be denied on account of the sex of any person.”
Malott said “the voice of New Mexicans in adopting (the Equal Rights Amendment) clearly prohibits such discrimination against same-sex applicants” for marriage licenses.
The provision distinguishes New Mexico’s Constitution from the U.S. Constitution: The national ERA fell three states short of the required 38-state ratification and did not become part of the U.S. Constitution.
A dozen years after New Mexico’s ERA took effect, then-Gov. Toney Anaya pioneered the notion of protection from discrimination based on sexual orientation.
The Democrat, in a 1985 executive order, prohibited state government and its contractors from discriminating against gays and lesbians on the job, including in hiring, promotion and pay.
At the time, just one other state – Pennsylvania – had created a protection that broad for its state workers.
That effort during the mid-’80s was met with opposition, including an accusation by one lawmaker that Anaya “prostituted” New Mexico to a gay and lesbian political agenda.
It would be nearly two decades more before the Legislature outlawed discrimination against gays and lesbians.
“Unfortunately, it took New Mexico 20 years to take the steps I thought it should have taken 20 years before,” Anaya told the Journal.
“Advancements in civil rights have always been a struggle. … You need leadership from the state level, and we have not had it, whether it’s from the legislative branch or the executive branch,” the former governor said.
It was the early 1990s when lawmakers began debating a change to the anti-discrimination provisions of the Human Rights Act to include gays and lesbians.
The proposal failed in the Legislature in 1991 and 1993, but it prompted widespread debate in New Mexico about whether sexual orientation warranted the same shield from discrimination that protected race and gender.
In a Journal Poll in 1993, half of the respondents either believed those protections should not be available based on sexual orientation, or were undecided about it. At the time, about 69 percent of voters said same-sex marriage should not be allowed.
The 1993 legislation passed the Senate but failed in the House, after then-Gov. Bruce King, a Democrat, said he had reservations about signing it.
It was 2003 before lawmakers voted to include sexual orientation in the Human Rights Act.
That same year, newly elected Democratic Gov. Bill Richardson issued an executive order extending state benefits to domestic partners of state employees, fulfilling a campaign promise.
Richardson also pushed unsuccessfully for legislation authorizing domestic partnerships, although he was not in favor of same-sex marriage.
For more than 20 years, the Legislature has grappled with the broader issue of gay rights in a variety of forms, including hate crimes legislation – also passed in 2003 – as well as bills authorizing domestic partnerships and variously endorsing or outlawing same-sex marriage.
No bills having to do with marriage or domestic partnerships ever passed.
The New Mexico Conference of Catholic Bishops, which has wide influence in heavily Catholic New Mexico, has strongly opposed same-sex marriage legislation.
“We believe this institution of marriage to be ‘unique and irreplaceable,’ for ‘only does the sexual union of a man and woman bring forth children,” the New Mexico bishops said in a recent statement.
Former state Sen. Leonard Lee Rawson, a Las Cruces Republican who was at the forefront of the opposition to gay rights and same-sex marriage, said, “There wasn’t enough support in the Legislature to legalize gay marriage, nor was there enough support in the Legislature for the (Defense of Marriage Act).
“It’s a highly charged, emotional debate, and there are people who, for the most part, have strong convictions on both sides,” said Rawson, who believes the intent of marriage is procreation.
Rawson contends the New Mexico Legislature’s failure to approve domestic partnerships or same-sex marriage is, in fact, a decision: “That’s the Legislature saying no.”
Liz Stefanics of Santa Fe, a former state senator who was the first openly gay legislator, was surprised at the recent turn of events.
“I didn’t think it would happen for a long time,” said Stefanics, a Santa Fe County commissioner who was first in line to be married Aug. 23 after the Santa Fe county clerk began issuing licenses.
Stefanics noted how the movement has evolved over the years – for example, to include bisexual and transgendered people.
“When I was elected, everybody danced around my being gay,” recalled Stefanics, who served from 1993 to ’96.
She said she is optimistic that the issuance of licenses to same-sex couples will ultimately be upheld, but can’t help worrying what will happen if the issue reaches the Supreme Court.
“What if they set us back again, and if they send it back to the Legislature?” she said.
Rep. Gail Chasey, D-Albuquerque, a longtime advocate for marriage equality, says the recent events in New Mexico reflect the national mood.
Chasey said that “as more people became aware of the fact they actually know a lot of people who are gay, there was just a greater acceptance.”
She strongly disagrees with Republican Gov. Susana Martinez and others who say the issue of same-sex marriage should be put to a vote of New Mexicans.
“This is a civil rights issue,” Chasey said. “If you had put voting rights on the ballot in the South in the ’60s, we wouldn’t have voting rights.”
Martinez has argued the issue should go to a statewide vote because “it is most appropriate for voters – not politicians – to make the determination in New Mexico.”
Santa Fe Archbishop Michael Sheehan has said that the church respects “all our brothers and sisters regardless of sexual identity” but that New Mexico church leaders “will continue to uphold and defend the Biblical definition of marriage.”
Here is a timeline of New Mexico events leading to the issuance of same-sex marriage licenses by six county clerks in August 2013.
March 1972: The New Mexico Legislature adopts Equal Rights Amendment to state Constitution prohibiting discrimination based on gender; it’s proposed to protect women in the workplace.
November 1972: Voters ratify Equal Rights Amendment. Amendment was key factor in August 2013 order by District Judge Alan Malott that same-sex marriage is constitutionally protected.
April 1985: Gov. Toney Anaya enacts executive order prohibiting state agencies or contractors from discriminating against gays or lesbians on the job.
March 1991: A proposal to add sexual orientation as protected from discrimination in state Human Rights Act is debated in Legislature but fails. It fails again in 1993.
April 1995: Gov. Gary Johnson vetoes hate-crime bill that would have enhanced penalties for crimes committed because of the victim’s race, ethnicity, religion, gender or sexual orientation. Johnson said sufficient protections already were available through the courts. Johnson vetoed the legislation again in 1999.
January 1996: Legislation to prohibit same-sex marriage by defining marriage as between one man and one woman is introduced but fails. Similar legislation was reintroduced in almost every subsequent year, but always failed.
February 1997: Same-sex Santa Fe couple, Patti Levey and Beth Saltzman, are denied marriage license from Santa Fe County clerk, raising legal question of whether state law as written allows same-sex marriage.
January 2003: Bill to define “domestic partnership” between same-sex couples and creating a limited protection of benefits is proposed but fails in Legislature. Similar bills were introduced and failed again in 2005, 2007, 2008, 2009 and 2010.
March 2003: Legislature amends Human Rights Act to create specific protections from discrimination based on sexual orientation for employment, housing and other areas.
March 2003: Increased penalties for perpetrators of hate crimes, including crimes targeting victims based on sexual orientation, is passed by the Legislature and signed by Gov. Bill Richardson.
April 2003: Gov. Bill Richardson signs an executive order extending benefits to domestic partners of state employees.
November 2003: Massachusetts Supreme Court rules same-sex marriage in that state should be legal, laying a path for Massachusetts to become the first state to legalize same-sex marriage.
February 2004: Sandoval County Clerk Victoria Dunlap concludes that New Mexico law does not prohibit same-sex marriage and issues 64 marriage licenses to same-sex couples before then-Attorney General Patricia Madrid files for court order the same day to stop the marriages.
February 2004: Legislature votes on discrimination protections for gays and lesbians after a bill passed in 2003 and signed by Richardson is found to have an error that allowed some employers to be exempt.
January 2010: Proposal to legalize same-sex marriage by replacing “bride and groom” language in marriage license form with “applicant” titles is introduced in Legislature but fails.
January 2011: Attorney General Gary King issues opinion saying New Mexico courts should recognize same-sex unions of couples legally married in other states.
February 2012: Same-sex couple married in New Mexico in 2004 are granted a divorce by a state judge who ruled that the marriages licensed by the Sandoval County clerk remained legally valid.
March 2013: Two same-sex couples who were denied a marriage license by the Bernalillo County clerk file a lawsuit against the state and Bernalillo County.
June 2013: The U.S. Supreme Court strikes down key elements of the federal Defense of Marriage Act, clearing a path for same-sex couples legally married to qualify for benefits available to heterosexual couples, such as filing joint tax returns.
June 2013: Attorney General Gary King announces that same-sex marriage is prohibited by state law after his review of New Mexico marriage laws. King said the laws should be challenged as unconstitutional in the state Supreme Court.
July 2013: Couples who filed lawsuits after denial of marriage licenses appeal to the Supreme Court to hear their cases directly. The high court declined and directed cases back to district courts.
Aug. 21, 2013: Doña Ana County Clerk Lynn Ellins begins issuing marriage licenses to same-sex couples. He said he was tired of waiting on the courts to take action on same-sex marriage. The attorney general declined to intervene.
Aug. 23, 2013: Santa Fe District Judge Sarah Singleton directs Santa Fe County Clerk Geraldine Salazar to show cause for not issuing marriage licenses. Although Singleton did not rule on the merits of same-sex marriage questions, Salazar began issuing licenses to same-sex couples in Santa Fe.
Aug. 26, 2013: District Judge Alan Malott of Albuquerque orders Santa Fe and Bernalillo County clerks to issue marriage licenses, resolving legal claims filed by couples denied marriage licenses in both counties. Malott’s order says prohibiting same-sex marriage violates the Equal Rights Amendment to the state Constitution. County clerks say they won’t appeal Malott’s ruling.
Aug. 27, 2013: County clerks in San Miguel and Valencia counties choose to begin issuing same-sex marriage licenses. Judge in Taos County orders clerk to issue licenses as well. Additions increase to six the total number of counties beginning to issue same-sex marriage licenses.
Aug. 30, 2013: Republican lawmakers sue to stop the Doña Ana County clerk from issuing same-sex marriage licenses, saying the clerk exceeded his authority.