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SANTA FE, N.M. (AP) — New Mexico's highest court is stepping into the fray over gay marriage and could set a statewide precedent at a time when some counties grant the unions and others don't.
The Supreme Court will hear arguments from lawyers Wednesday. There's no deadline for the five justices to issue a decision.
At issue is an Albuquerque district judge's ruling in late August that denying marriage licenses to gay and lesbian couples is unconstitutional.
County clerks statewide have asked the justices to clarify state law because eight of the 33 clerks are issuing marriage licenses to same-sex couples.
New Mexico law doesn't explicitly prohibit or authorize gay marriage. However, the marriage laws — unchanged since 1961 — have a marriage license application with sections for male and female applicants. There also are references to "husband" and "wife."
The current and previous state attorneys general have said the law effectively prohibits gay marriage. But Attorney General Gary King — a Democrat — contends such a prohibition is unconstitutional. King's office is defending the Albuquerque judge who ordered marriage licenses be granted to same-sex couples in two counties.
Fourteen other states and the District of Columbia allow for same-sex marriage either through court rulings, legislation or voter referendums.
The New Mexico case has drawn attention from national activists on both sides of the issue.
The American Civil Liberties Union and the National Center for Lesbian Rights are representing same-sex couples in the case. They contend that gay marriage must be allowed because of constitutional guarantees of equal protection under the law and a state constitutional prohibition against discrimination based on sexual orientation.
A group of nearly two dozen former and current legislators — all Republicans except one — are urging the justices to declare that marriage is between a man and woman. They're being represented at the hearing by an attorney for a conservative Christian law group called the Alliance Defending Freedom.
New Mexico courts have become a battleground over gay marriage in the past two months after the Dona Ana County clerk independently decided to start granting marriage licenses to same-sex couples. Seven other clerks followed, some in response to orders by lower courts.
Proposals to ban gay marriage have failed in the Democratic-controlled Legislature over the years as well as measures to establish domestic partnerships for same-sex couples. A proposed constitutional amendment to allow gay marriage, which would have required voter approval, died earlier this year in a legislative committee.