By Karin Klein
4:05 PM CDT, August 27, 2013
Welcome, New Mexico, to the roster of states where same-sex marriage is performed and recognized. Sort of.
It has been a bumpy ride on the way to marriage rights for gay and lesbian couples. Some states have come to that point through the courts, sometimes though their legislatures, sometimes by the voters themselves. Not counting New Mexico, 13 states and the District of Columbia now recognize such marriages.
Why leave out New Mexico? Same-sex marriage hasn’t exactly been legalized there because of some unusual factors particular to the sometimes quirky state. For one thing, New Mexico doesn’t have any laws that ban same-sex marriage. It in fact doesn’t have laws regulating marriage, period. As a result, a clerk in one southern county recently began issuing marriage licenses and, unlike in other states where municipal governments took it upon themselves to make marriage law, it’s OK. There is no state law to override the clerk’s decision.
Meanwhile, the New Mexico Supreme Court has made clear that it’s in no rush to make a decision about same-sex marriage. In fact, the court suggested that lower courts just see if they couldn’t handle this on their own. And that just happened twice over the last week in separate court victories that institute same-sex weddings in New Mexico’s two most populous counties.
How this affects the other counties in the state is unknown for now; the rulings aren’t binding on them yet. Republican politicians are talking about a lawsuit to stop the weddings, saying that the governance of marriage is up to states. That’s true, but in the case of New Mexico, the state’s governance up to now could best be described as “Hey, whatever.” Gay marriage foes might try legislating against the marriages, but it’s late in the game and any such attempt might be viewed skeptically by courts that see it for what it is: An attempt to take away a civil right that a group already has.
It’s a messy way to go about achieving the admirable goal of full recognition for same-sex couples. But then, California’s struggle over marriage rights involved a much more twisted tale. As Shakespeare might put it, the course to true civil rights never did run smooth.
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