About a week before the U.S. Supreme Court heard arguments in a pair of same-sex marriage cases this spring, Kim Kiel and her partner of nine years, Rose Griego, went to apply for a marriage license in Albuquerque. “We expected to be turned down,” says Kiel. “Still, there was this little spark of hope and we thought, what if they change their mind and say, let’s be radical?”
No such luck: Bernalillo County Clerk Maggie Toulouse Oliver says she had to refuse the couple’s request because of the way New Mexico’s marriage license applications are worded, with some sections that are supposed to be filled out by a man and others by a woman. “That’s been the basis of why I and my fellow clerks have not issued them,” says Oliver, noting that she personally supports allowing gay couples to wed.
Since Massachusetts became the first state to legalize gay marriage in 2004, every state except New Mexico has sorted out where it stands on granting spousal rights to same-sex couples. Thirty-eight states prohibit gay marriage; nine allow it. New Mexico is the only remaining state without a position on either gay marriage or civil unions.
Kiel and Griego, along with the American Civil Liberties Union, want to force the state’s courts to decide whether gay marriage is legal. On the day that Oliver’s office turned them away, the women, and another lesbian couple also denied a license, filed a civil lawsuit against Oliver in her role as clerk, arguing that they have the right to marry because New Mexico law doesn’t expressly say they don’t.
Elizabeth Gill, an attorney with the ACLU, says the format of the marriage license application doesn’t trump an equal rights provision or a right to due process guaranteed in the state’s constitution. “We don’t think a form dictates the content of New Mexico law,” Gill says.
In 2004, 64 gay couples were allowed to wed on a single day in Sandoval County, north of Albuquerque, when the Republican county clerk at the time decided to test the limits of state law before county commissioners sued to stop her. The case was eventually dropped, but no gay couples have received licenses since, and won’t, Oliver says, “until there’s some legal resolution to the matter.”
State lawmakers haven’t acted on legislation that would ban gay marriage—even though it’s been introduced nearly every year since 1996. They’ve also declined to vote on a series of bills over the last eight years that would let gays marry or enter into civil unions.
The percentage of New Mexicans approving of gay marriage rose to 47 percent last year from 38 percent in 2004, according to the Williams Institute, a public policy think tank at the University of California at Los Angeles. New Mexico had the country’s seventh-highest concentration of same-sex couples in 2010, according to the group’s analysis of census data.
Last month, Santa Fe Mayor David Coss and Councilor Patti Bushee, both Democrats, introduced a city resolution that says gay marriage is legal under state law and calls on county clerks across New Mexico to let same-sex couples wed. Democratic Attorney General Gary King will release a nonbinding opinion on the issue soon, says his spokesman, Phil Sisneros. In 2011, King said New Mexico ought to recognize same-sex marriages performed in other states.
“The limbo has been frustrating,” says Griego. She and Kiel held a commitment ceremony with 150 friends and family at a museum in Santa Fe in 2010. They say they might do something smaller if they prevail in their case and can officially marry, though they’re not making any plans. As Kiel says, “We know it will go on for a couple years.”