How A County Clerk Ignited The Gay Marriage Debate In N.M.

By Richard Gonzales

Published October 22, 2013 at 4:52 PM EDT

Dona Ana County Clerk Lynn Ellins talks with Thom Hinks and Richard Sunman (far right) after they obtained a marriage license at the Dona Ana County Clerk's Office in Las Cruces, N.M. In August, Ellins' office began issuing marriage licenses to same-sex couples.

New Mexico law doesn't explicitly ban or approve same-sex marriage. There were a spate of lawsuits seeking to clarify the issue, but they were tied up in the courts. Then in August, the clerk of Dona Ana County, Lynn Ellins, a long-time supporter of same-sex marriage, consulted his staff.

"And we all agreed that it was about time to bring this thing to a head, and if we did nothing, the cases would languish in the district court if we did not move to issue these licenses and try and put the ball in play," Ellins says.

Soon state judges ordered four other county clerks to follow Ellins' lead and together they have issued more than 900 marriage licenses. But not every county clerk was prepared to do the same in their communities. Instead, all 33 county clerks in New Mexico agreed to petition the state Supreme Court for a final say on the matter. The main opposition comes from a group of Republican lawmakers led by state Sen. William Sharer of Farmington.

"So when Lynn Ellins decided that he was the only one in New Mexico that could properly read the law and declared that same-sex marriage was legal, I stepped in and said, 'No, you're wrong. We must stop this,' Sharer says, adding that Ellins "far exceeded his authority."

But the reaction from other quarters has been relatively mild. New Mexico's three Catholic bishops said the action of the county clerks should be resolved by the Legislature. And Republican Gov. Susana Martinez has said the issue should be determined by the voters.

But supporters of same-sex marriage say local polls indicate that New Mexicans are prepared to accept a state Supreme Court ruling confirming marriage equality. They are also encouraged by what's happened in New Jersey, says Elizabeth Gill of the ACLU.

"It's yet another court that has analyzed whether there's any real reason to discriminate against same-sex couples in marriage and concluded that there is not," she says.

Gill and others say their side has momentum.

In Oregon last week, state authorities said they would recognize same-sex marriages performed in other states. Advocates are trying to get a freedom-to-marry initiative on Oregon's ballot in November 2014.

In Illinois, a same-sex marriage bill awaits action by the lower House.

In Pennsylvania, a federal lawsuit challenging that state's same-sex marriage ban is in the courts, and there's a marriage equality bill before the Legislature.

In Hawaii, a special legislative session has been called for later this month to consider a marriage bill.

And in Tennessee, there's a lawsuit challenging both state law and a constitutional amendment banning same-sex marriage.

Sara Warbelow, a spokeswoman for the D.C.-based Human Rights Campaign, says in some states it appears marriage equality is inevitable.

"There's been a fair amount of polling, and rather consistently, 80 percent of the American public says within the next 10 years, marriage equality will be the law of the land," Warbelow says.

Back in New Mexico, the Supreme Court justices have taken the unusual step of expanding oral arguments Wednesday from 20 minutes to one hour for each side. They have not indicated when they will issue their decision. In the meantime the court is allowing marriages to continue.

Corrected: October 23, 2013 at 12:00 AM EDT

A previous photo caption incorrectly said that the Dona Ana County Clerk's Office began issuing marriage licenses to same-sex couples for the first time in New Mexico history. In fact, a clerk in another county issued dozens of licenses to same-sex couples in 2004.