How New Mexico Legalized Gay Marriage – For 8 Hours
By Jake Grovum, Staff Writer
The clerk was nervous as he filled out the first same-sex marriage license ever issued in New Mexico.
“He knew it was going to be controversial,” recalls Mary Houdek, one-half of the couple being issued a license. “That gentleman was shaking.”
It was just after 8 a.m., February 20, 2004. For the next eight hours, same-sex marriage was legal in New Mexico. The state put an end to it that afternoon. But since then, the whole issue has been in a sort of legal limbo, leaving citizens and especially the 64 couples who married that day living in an uncertain situation. Today, New Mexico is the only state in the country that has no law of any kind dealing with same-sex marriage.
The controversy started when Sandoval County Clerk Victoria Dunlap announced she’d begin issuing licenses to same-sex couples, arguing, correctly, that nothing in state law defined marriage as being between a man and a woman. “She just sprung it up,” Norma Vazquez de Houdek, Mary’s spouse, says. “I thought it was a big hoax.”
But it was no hoax. And the quiet county government building in Bernalillo quickly turned into a circus, as Mary Houdek recalls. Journalists, lawyers, protesters and, of course, couples, flooded the scene. By mid-afternoon, armed guards were stationed at the complex holding back the throng of couples rushing to file paperwork. The final license was processed at 4:10 p.m., after then-Attorney General Patricia Madrid ordered the county to stop. In all, 66 licenses were issued. Dozens were left in line.
The issue has hung in the balance ever since, even as the rest of the country has struggled with same-sex marriage and a landmark case has moved to the Supreme Court for decision later this year. The New Mexico legislature still has done nothing to address the question. And activists, lawyers and the couples who were married– now known as the “Sandoval 64” – have been dealing with the fallout ever since.
“It’s just so emotional,” Mary Houdek says, tearing up as she recalls the impromptu weddings on the courthouse lawn. “That day was just so wonderful, to happen like that.”
A Quirk in the Law
It was the Equal Rights Amendment that paved the way for the “Sandoval 64.” When the state adopted the measure in 1973, it went through statutes and removed references to gender on everything from property law to marriages.
So in 2004, with news of same-sex marriages springing up in municipal buildings and courthouses from San Francisco to Massachusetts, Dunlap took it upon herself to issue licenses. Aside from the marriages, that act resulted in Dunlap being censured by her own Republican Party, losing a primary challenge by a four-to-one margin and being ousted from office.
But her departure meant key questions about the licenses and the marriages went unresolved. A lawsuit by the attorney general challenging Dunlap’s authority to issue the documents was dropped once she left office. To this day, no court has ruled definitively on whether Dunlap was correct to issue the licenses or, perhaps more importantly, whether they could be issued again.
County clerks have since agreed not to issue any other same-sex licenses until state lawmakers act. But at least in theory, advocates and lawyers say, someone else could still pick up where Dunlap left off. “There’s no reason a county clerk can’t do it,” Lynn Perls, a family law specialist, says. “There are always discussions, every year.”
Marriages In The Balance
But whatever the ultimate result, the last eight years haven’t been easy for those married on license day in 2004. Some say there is no doubt the unions were valid. Others aren’t so sure.
A divorce case in 2010 involving one of the couples put the question to the test. One partner was pushing for divorce and division of assets. The other argued the marriage was void from the beginning. A judge eventually found it valid and let the divorce proceed, but the ruling was narrow. The order didn’t address whether New Mexico law broadly allowed or prohibited same-sex marriage. Even Amber Train, the attorney who successfully argued the case, admits the legal ground remains unsettled. “It’s all still incredibly fuzzy,” she says.
Many of the Sandoval 64 are in uncharted territory when it comes to insurance coverage, finances or other rights bestowed on married couples. Some may have split up without a formal dissolution or divorce on the assumption their unions were void, which could cause issues if they try to remarry elsewhere later.
“You’ve got all these marriage licenses out there,” Train says. “You may have a lot of people floating out there that have gone their separate ways.”
While some gay marriage supporters continue to insist all the 2004 marriages are legal, others are focused on a broader agenda, advocating a law to explicitly allow same-sex marriages in the state. As Linda Siegle, a lobbyist for the Coalition for Equality in New Mexico, puts it, the 2004 scenario is seen as something of a loophole. The debate in New Mexico has generally proceeded as though same-sex marriages aren’t allowed, whether they technically are or not.
“It’s really our opinion that the Sandoval 64 are the weakest cases,” Siegle says. “When you get married here, where it’s still an open question, that’s not the best situation.”
But public opinion on the broader issue has been shifting, in New Mexico as elsewhere. Some say the “Sandoval 64” opened a door in the state, even if just slightly. New Mexico now has the fifth-highest concentration of same-sex couples in the country, according to Census data. And a poll late last year showed plurality support for same-sex marriage. In 2011, the state began recognizing marriages performed elsewhere.
Still, even advocates aren’t optimistic about chances for full legalization in this year’s session. While a bill to define marriage as between a man and woman recently failed on a key vote, Governor Susana Martinez, a Republican, remains opposed to legalization.
Democrats, for their part, have put forward a constitutional amendment, which if passed would circumvent Martinez and appear on the ballot in 2014, to legalize same-sex marriage. But even that has divided same-sex marriage supporters. Some fear a loss at the polls; others object in principle to putting the rights of same-sex couples to a public vote. The measure cleared an early committee hurdle, but it has a long way to go.
‘It’s Been a Struggle’
For Mary Houdek and Norma Vazquez de Houdek, too, the experience since 2004 has been one of ups and downs. Both state employees, they were helped by former Governor Bill Richardson’s executive order extending benefits to domestic partners. Private insurers have generally offered coverage without challenge.
But a sense of confusion has prevailed from the day they wed. They watched closely the divorce case from 2010, along with many other members of the “Sandoval 64.” Until then, “people had sort of swept their marriages under the carpet,” Norma Vazquez de Houdek says. “It’s been a struggle.”
The court decision helped settle that, to a degree. But not to the entire state's satisfaction. That is a reality that continues to frustrate the Sandoval 64. “The fact is,” says Vazquez de Houdek, “we are married.”