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The Capital of Gay-Marriage Gridlock

The one state that just can't make up its mind

David McNew/Getty Images News

Earlier this month, two lesbian couples in New Mexico headed to the Bernalillo County clerk’s office in downtown Albuquerque and applied for a marriage license. As expected, they were denied. And, as planned, the ACLU immediately filed a lawsuit on their behalf, setting the future of gay marriage in New Mexico on a path to the state Supreme Court.

Presuming the court rules, it will be the first time New Mexico will have an authoritative answer on legal protection for homosexual relationships. The issue, which divides the nation (a CBS poll last week found 53 percent in support, 39 opposed) and stands before the U.S. Supreme Court, has already prompted legislation in forty-nine state legislatures. There are currently nine states where same-sex couples can get a marriage license; thirty-eight that have a constitutional ban on gay marriage or restrict it to heterosexual couples; and eight states (nine, as of May 1, when a Colorado domestic partnership bill goes into effect) that offer some level of spousal rights to same-sex couples.

Meanwhile, New Mexico carries the distinction of being the only state in the nation that neither legally recognizes nor disavows the relationships of gay couples.

The situation calls to mind the oft-repeated, shrug-shoulder quote from the state’s former governor, Lew Wallace: “All calculations based on experience elsewhere, fail in New Mexico.” It’s not that New Mexicans don’t care about the issue. Rather, a combination of the state’s socio-economics, entrenched Democratic politics, and Catholic Latino religiosity have kept the issue in a permanent legislative deadlock.

Democrats have, in fact, spent several years failing to pass a gay marriage bill. They spent several more years failing to pass a domestic partnership bill. And before that, they spent several decades failing to pass an amendment to the state’s human rights bill that included mention of gays and transsexuals. (This last measure finally was signed into law when Bill Richardson took over the governor’s mansion in 2003. Richardson also issued an executive order that provided health care benefits to domestic partners that the current Republican governor, Susana Martinez, has kept in place despite her opposition to a domestic partnership law.)

The biggest obstacle to resolving gay marriage in New Mexico, one way or the other, has been the unique influence of the Catholic Church. All things considered, the New Mexico Archdiocese has been relatively demure on social issues like gay rights, having twice taken an officially neutral position on domestic partnership legislation. LGBT leaders argue that the state’s high poverty rate has made the Church friendlier with Democrats in New Mexico than it has in some other states. Allen Sanchez, the executive director of the New Mexico Conference of Catholic Bishops, says it’s the other way: Democrats have made sure not to step on the toes of the Church.

However, when a piece of domestic partnership legislation was put forth in 2009, the archdiocese decided the language was implicitly supportive of gay marriage and decided to come off the sidelines to condemn it. The bishops’ last-minute position had the effect of convincing two Latino Catholic Democratic lawmakers to jump ship, and the bill failed. This followed a huge push from the state’s LGBT community, and an all-night negotiation session with Sanchez that at one point seemed to have brokered a détente. Afterwards, gay rights organizers in New Mexico switched their focus from domestic partnership legislation to marriage equality. New Mexico’s Conference of Bishops has officially opposed same-sex marriage, doubling down in a statement last week, which called this “regrettable for many reasons.”

At the same time, conservative legislators have been in the minority party the better part of a generation and have failed to pass legislation to define marriage as being between a man and woman. Since 1997, a procession of DOMA bills proposed by Republicans have died, one after another, in committee. The nearest one ever came to passing out of the chamber was in 1999, when a joint resolution was briefly “blasted” to the Senate floor, but then quickly tabled.

“No one can get over the opposite hurdle,” said Democratic state Rep. Brian Egolf, a Santa Fe lawyer who failed in his effort last session to put a pro-gay marriage constitutional amendment on the ballot. “We are all kind of stuck.”

The Bernalillo County clerk’s office denied the lesbian couples’ marriage licenses on account of a provisional law, dating back to 1961, which outlines for county clerks the way in which a license must look. At the bottom of the form, it is so stipulated, there must be two signature lines: one for “bride,” and the other for “groom.” In the annals of New Mexico statutory law, this is the only place where the gender specificity of marriage is defined.

Egolf’s bill last session, which sought to redress this, gained only a lukewarm reception from the state’s gay rights leaders, who worried that the political landscape was too uncertain—and the cost too high—to bring the issue before voters.

“We just didn’t know,” said Peter Simonson, the executive director of the ACLU of New Mexico. “There has been no polling done in the state since the end of 2011, and you don’t go into an issue like that lightly. But at end of the day, the other concern is that in pursuing that strategy, it suggests that the ACLU endorses the notion that people’s fundamental rights, in this case the fundamental right to marry, should be subjected to a popular vote.”

Egolf says he’ll wait to see what comes of the lawsuit, before he re-introduces his bill. He said he worries about the effect the case will have in politicizing New Mexico’s courts; Simonson thinks that concern is without merit. Martinez has made clear she will veto any domestic partnership or pro-gay marriage bill that lands on her desk.

“My preference would have it passed through legislation,” said Simonson, “but I think that certainly is not possible with a Republican governor or the Republican governor that we have – even if we got it through legislature. That would take longer.

Gay rights leaders are hoping for a hearing on the ACLU suit this year, understanding that several years will pass before it reaches the state Supreme Court, if ever. (Martinez is up for re-election in 2014.) They express optimism that they will prevail in the state’s top court, arguing that New Mexico already has robust equal protection laws.

But for now, the Land of Enchantment is a state of uncertainty.

Daniel Libit is a Chicago-based writer. He previously covered national politics for Politico and The Daily.

Correction: An earlier version of this article misspelled the first name of the former New Mexican governor Lew Wallace.