Same-sex marriage in New Mexico
|Legal recognition of
† Not yet in effect
Same-sex marriages are licensed in certain counties of the state of New Mexico. As of September 9, 2013, eight of 33 counties, covering 58% of the state's population, issue or plan to issue marriage licenses to same-sex couples. New Mexico state law does not explicitly permit or prohibit same-sex marriage; it is the only state lacking a state statute or constitutional provision explicitly addressing same-sex marriage.
A small number of same-sex marriages were licensed in Sandoval County in 2004. The practice was halted later that same day, February 20, after New Mexico Attorney General Patricia Madrid filed a lawsuit to stop the practice.
On August 21, 2013, the county clerk of Doña Ana County, on his own initiative, began issuing marriage licenses to same-sex couples. Later in the month, three district judges ruling on separate lawsuits ordered first Santa Fe County, then Bernalillo County, and then Taos County, to issue marriage licenses to same-sex couples, with a fourth judge ordering the same in Grant County in September. A similar ruling was made in Los Alamos County, where the county clerk said she would not comply with the order until it was upheld on September 4, the first time a New Mexican judge affirmed a ruling for same-sex marriage after it had been challenged. Meanwhile, county clerks in San Miguel and Valencia counties altered marriage licenses for same-sex couples.
On August 29, 2013, New Mexico's county clerks voted unanimously to ask the New Mexico Supreme Court to rule on the legality of same-sex marriage and the Supreme Court held a hearing on their petition on October 23.
- 1 Law
- 2 Legislative efforts
- 3 Local jurisdictions
- 4 Court cases
- 5 Economic effects
- 6 Demographics
- 7 Public opinion
- 8 References
- 9 External links
- 10 Bibliography
New Mexico Statutes §40-1 and §40-4 define marriage and the validity of out-of-state marriages:
- "Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential."
- "All marriages celebrated beyond the limits of this state, which are valid according to the laws of the country wherein they were celebrated or contracted, shall be likewise valid in this state, and shall have the same force as if they had been celebrated in accordance with the laws in force in this state."
The advocacy group Freedom to Marry summarized the legal situation as of early 2011 this way:
Because New Mexico’s laws do not prohibit marriage between same-sex couples, there is no impediment to New Mexico same-sex couples marrying in Massachusetts (or other jurisdictions that allow same-sex marriages) and having their marriage honored in New Mexico. While Massachusetts' government directed that licenses could be given to New Mexico couples, the New Mexico state government has not taken action to ensure they will be honored.
Recognition of out-of-state marriages
In July 2007, when a Massachusetts court determined that New Mexico did not have a statute banning same-sex marriage and therefore same-sex couples resident in New Mexico were entitled to be married in Massachusetts, the ACLU of New Mexico noted that the decision would have little impact because New Mexico had yet to recognize same-sex marriages established in another jurisdiction.
On January 4, 2011, New Mexico Attorney General Gary K. King issued an opinion in response to a formal inquiry by State Representative Al Park, who asked, "Are same-sex marriages performed in other jurisdictions valid in New Mexico?" He concluded:
While we cannot predict how a New Mexico court would rule on this issue, after review of the law in this area, it is our opinion that a same-sex marriage that is valid under the laws of the country or state where it was consummated would likewise be found valid in New Mexico.
And in a press release issued the same day, King said, "A comprehensive legal analysis by my office concludes that valid same-sex marriages in other states would likely be valid in New Mexico." King's opinion, which does not have the force of law, has not been affirmed by New Mexico's courts or state legislature. A spokesman for Governor Susana Martinez responded to the opinion by saying, "Gov. Martinez made it clear during the campaign that she opposes same-sex marriage. It's important to note that no New Mexico court has ruled on this issue."
Legislation that would allow or prohibit same-sex marriage, or that would provide for domestic partnerships, has been introduced several times but has never been passed.
In January 2008, domestic partnership bill HB 9, advocated by governor Bill Richardson as part of his legislative agenda, passed the state's House by a 33 to 31 vote and was sent to the state Senate, which took no action on it. A similar bill had been defeated in the 2007 legislature. House Bill 47, providing that marriage may only be between a man and a woman, and House Joint Resolution 3, proposing a constitutional amendment to define marriage as being between a man and a woman, both died when the legislature adjourned on February 14, 2008, without acting on them.
On February 27, 2009, domestic partnership legislation that would grant both same-sex couples and opposite-sex couples many of the same rights found in a state marriage was voted down in the State Senate by a 25-17 margin, with 10 Democrats and 15 Republicans opposing the legislation. Supported by Governor Bill Richardson, supporters vowed to take up the issue again sometime later in 2009.
On February 15, 2010, a domestic partnership bill sponsored by Senator Peter Wirth (D-Santa Fe) was defeated in a Senate committee, "[striking] a blow to Richardson, who made extending many of the same rights enjoyed by married couples to gays and lesbians part of his legislative agenda." A proposed constitutional amendment sponsored by Senator William Sharer (R-Farmington) that would have limited marriage to opposite-sex couples was defeated by another Senate committee.
On January 22, 2013, Representative Brian Egolf, a Santa Fe Democrat, introduced a resolution (House Joint Resolution 3), which would put a constitutional amendment allowing same-sex marriage to a popular vote in November 2014. He said, "This will be the law sooner than people think." The measure's co-sponsors include another Santa Fe Democrat, Representative Stephen Easley. It requires approval by both houses of the legislature. On January 31, the House Consumer and Public Affairs Committee approved the measure in a 3-2 vote. On February 21, the Voters and Elections Committee defeated it on a 7-4 vote. On January 22, Representative Nora Espinoza, a Republican, introduced House Joint Resolution 4 which would put a constitutional amendment banning same-sex marriage to a popular vote in November 2014. The committee failed to approve it in a 2-3 vote on February 5.
- Sandoval County
On February 20, 2004, at the time of the widely publicized same-sex weddings in San Francisco, Sandoval County clerk Victoria Dunlap, a married Republican with two children, began issuing marriage licenses to same-sex couples. Dunlap had called the county attorney for input after receiving an inquiry about issuing a marriage license to a same-sex couple. He found that gender was only mentioned on the marriage license application form and advised her to consult the attorney general. She sought advice from several state officials for several days without success and decided to issue licenses to same-sex couples beginning February 20. She told the Albuquerque Journal: "This has nothing to do with politics or morals. If there are no legal grounds that say this should be prohibited, I can't withhold it.... This office won't say no until shown it's not permissible."
The Sandoval County courthouse was quickly thronged by same-sex couples applying for marriage licenses when Dunlap's decision was reported. Two local ministers officiated at marriage ceremonies for 26 couples on the courthouse steps on February 20. According to a suit filed against Dunlap in July by the attorney general, 66 licenses were issued and by March 23 some 64 of the couples had married "as evidenced by the return and filing of licenses and Certificates of Marriage."
Later that day, New Mexico Attorney General Patricia Madrid issued an opinion stating that the licenses were "invalid under state law", citing the license application form and several statutes and court decisions. The Sandoval County Clerk's Office stopped issuing them the same day. The Sandoval County Commission voted on February 23 to allow couples married on the 20th to register their marriages. A district court judge later issued a restraining order against Dunlap, prohibiting her from issuing any further licenses to same-sex couples for the duration of her term as clerk, which ended on January 1, 2005. Dunlap then filed a motion with the New Mexico Supreme Court for permission to continue issuing the licenses, but on July 8, 2004, the court rejected the motion. The restraining order was never lifted. County and state officials criticized Dunlap and the Sandoval County Republican Central Committee censured her and said she "brought disgrace to the party as a whole". Dunlap did not seek reelection.
The validity of the same-sex marriages licensed in 2004 remained uncertain, though in 2010 a New Mexico court approved a divorce for one of the marriages. On August 9, 2010, State District Judge Sarah Singleton ruled that the marriage license issued to one same-sex couple in 2004 was valid and subject to divorce proceedings, but she did not otherwise address the legal status of same-sex marriage in the state. On August 28, 2013, after licenses issued in 2004 were found stamped "void", Attorney General Gary King advised Sandoval County that the licenses remain "presumptively valid" until a court rules otherwise.
In August 2013, several counties began issuing marriage licenses to same-sex couples either on the initiative of the county clerk or under court order.
Counties issuing marriage licenses
- Doña Ana County
On August 21, 2013, officials in Doña Ana County began issuing marriage licenses to same-sex couples at the courthouse in Las Cruces. The county clerk, Lynn Ellins, announced the change of policy, stating, "After careful review of New Mexico's laws it is clear that the state's marriage statutes are gender neutral and do not expressly prohibit Doña Ana County from issuing marriage licenses to same-gender couples. Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act. Doña Ana County is upholding New Mexico law by issuing these marriage licenses, and I see no reason to make committed couples in Doña Ana County wait another minute to marry." Approximately two dozen same-sex couples received licenses that day, and about 90 couples by Friday, August 23, including some from the neighboring state of Texas.
A group of Republican state legislators announced their intention to seek a court order to stop the county from issuing marriage licenses to same-sex couples; see Sharer v. Ellins for one such lawsuit filed. Republican Governor Susana Martinez reiterated her opposition to same-sex marriage, as well as her position that the legalization of same-sex unions should only be approved by a vote of the people. State Attorney General Gary King, a Democrat, said his office will take no action to stop Ellins from issuing licenses to same-sex couples. "We feel like our position that the laws aren't constitutional presents a barrier from us bringing action in that suit," said King, referring to parts of the New Mexico Administrative Code that make gendered references to married persons.
- Santa Fe County
On March 19, Santa Fe Mayor David Coss, City Councilor Patti Bushee, and City Attorney Geno Zamora announced that a resolution recognizing same-sex marriages would be introduced at the next Santa Fe City Council meeting on March 27. Zamora released a legal opinion that "New Mexico's statutory definition of marriage is gender-neutral." Coss urged county clerks to issue marriage licenses to same-sex couples. However, Santa Fe County Clerk Geraldine Salazar said she would not issue them until the law was clarified by state courts or the legislature. Bushee said she expected the issue to reach the New Mexico Supreme Court. On April 24, 2013, by a vote of five to one with two abstentions, the Santa Fe City Council passed a motion recognizing same-sex marriage as legal in New Mexico and advising county clerks to issue marriage licenses to same-sex couples. On July 20, 2013, the Santa Fe County Commission approved a similar resolution.
- Bernalillo County
On August 26, 2013, in Griego v. Oliver, an Albuquerque judge ruled in favor of a lesbian couple and ordered Bernalillo County Clerk Maggie Toulouse Oliver, a self-identified proponent of legalized same-sex marriage, to issue marriage licenses to same-sex couples in Bernalillo County, the state's largest county by population. Judge Alan Malott's opinion stated that any laws that contradict New Mexico's gender-neutral language on marriage and the state's Human Rights Act are unconstitutional. On August 27, in compliance with this court order, County Clerk Oliver began issuing marriage licenses to same-sex couples.
- San Miguel County
- Valencia County
- Taos County
In Stark v. Martinez, a district judge issued a writ of mandamus similar to those in the Santa Fe and Bernalillo county lawsuits ordering the county clerk in Taos County to issue marriage licenses to same-sex couples or else explain why not. The clerk, Anna Martinez, said she would not contest the ruling and confirmed the county would begin issuing marriage licences to same-sex couples on August 28. The court order came hours after Martinez said she would not issue same-sex marriage licenses unless ordered to do so, declaring, "I have to follow the law, and the law requires that marriage licenses state the male and female."
- Los Alamos County
On August 27, Los Alamos County Clerk Sharon Stover said she would not issue marriage licenses to same-sex couples until she received a court order instructing her to do so. She said "I want to have a good law that will hold up for all people. We need a ruling from the State Supreme Court." On August 29, in Newton v. Stover Judge Sheri Raphaelson ordered Stover to issue the license or appear on September 4 to explain her refusal to do so. On September 3, Stover announced she would not issue marriage licenses to same-sex couples and would appear in court on September 4 to argue her case. She said:
[A]s Clerk, I am required to uphold the laws of the State of New Mexico. I based my denial of a license last week on the actual language contained in the statutes. The statements contained on the marriage license that is issued by the Clerk’s office, as set forth in State law, requires a male and female or bride and groom applicant. I respect and value the rights of each person to be treated as equally and fairly as an individual as our Constitution states. Clearly, the marriage license in State statute has not been updated since 1961. It does not work for same sex couples, and that is a matter for the legislature to fix, not a Clerk and not a District Judge.
On September 4, after hearing Stover's arguments, Raphaelson ordered her to issue the marriage licenses. Los Alamos County began issuing marriage licenses to same-sex couples later that afternoon, although Stover said she will continue to use forms that state "male" and "female" for the individuals entering into marriage until the legislature issues new, gender-neutral licenses.
- Grant County
Robert Zamarripa, Grant County clerk, said on August 27 that he is waiting for instructions from a court of law before issuing same-sex marriage licenses, although he noted that he looked into the cost of ordering gender-neutral licenses in anticipation of an order similar to those issued in Bernalillo, Santa Fe and Taos county district courts. "I will follow court orders but until then, I will respectfully like to wait," Zamarripa said. The Grant County Clerk's Office turned away at least two same-sex couples seeking marriage licenses in Silver City, the county seat. In Katz v. Zamarripa, District Judge J.C. Robinson ordered Zamarripa to begin issuing same-sex marriage licenses on September 3 or else appear in court. Zamarripa told media that his office will begin providing the licenses during the second week of September. Grant County began issuing licenses to same-sex couples on September 9, according to local media.
Counties not issuing marriage licenses
- Sandoval County
On August 27, Sandoval County Clerk Eileen Garbagni acknowledged "nonstop" calls to issue marriage licenses to same-sex couples, but said that on the advice of the County Attorney she would not join other county clerks in issuing them without a court order. On August 31, in Gering v. New Mexico, the American Civil Liberties Union filed a lawsuit against Garbagni and the state on behalf of a lesbian couple denied a marriage license. Judge James Lawrence Sanchez, to whom the case was originally assigned, recused himself on September 5. The case was reassigned to Judge George P. Eichwald.
- Union County
On August 27, Union County Clerk Mary Lou Harkin said in response to questions about whether the county would follow Bernalillo County in licensing same-sex marriages, "Not yet." Harkin said she will "hold off for now" until she receives a court order "or other direction".
New Mexico County Clerks
On August 29, 2013, New Mexico's 33 county clerks voted to ask the New Mexico Supreme Court to rule on the legality of same-sex marriage. The Supreme Court on August 16 had rejected a request to consolidate and hear the same-sex marriage lawsuits being heard in several lower courts. On September 5, an attorney for the New Mexico Association of Counties filed a request on the clerks' behalf to be allowed to intervene in Griego v. Oliver. The clerks are not appealing the decision in that case, but asking the Supreme Court to halt the lawsuits against them in district court until it clarifies New Mexico law for the lower courts, including the issuance of licenses to same-sex couples and the clerks' authority to modify the forms used. The two clerks who were defendants in Griego v. Oliver were not joining their peers in this action because they are already parties to the case. The Supreme Court heard the Association's petition on October 23, and a ruling is expected by the end of the year.
Griego v. Oliver
On March 21, 2013, in Griego v. Oliver, Rose Griego, her partner, along with another lesbian couple, as represented by the American Civil Liberties Union and others, filed a lawsuit in State District Court in Albuquerque challenging the Bernalillo County clerk's refusal to issue them marriage licenses. On June 6, the plaintiffs filed an amended complaint where they were joined by three more same-sex couples seeking relief. On August 16, the plaintiffs filed a second amended complaint, adding one more couple seeking relief, while also claiming that New Mexico not recognizing same-sex marriage "deprives them of hundreds of protections, benefits, and obligations of marriage that the federal government now provides to married same-sex couples in light of the United States Supreme Court’s decision in United States v. Windsor." 
On August 26, District Court Judge Alan M. Malott ruled for the plaintiffs, finding that any reading of state marriage statutes that prohibit issuance of marriage licenses to same-sex couples "are unconstitutional and unenforceable under Article II, Section 18, New Mexico Constitution." He then ordered the clerks in Bernalillo and Santa Fe Counties to issue marriage licenses to all same-sex couples otherwise qualified. The clerk's office in Bernalillo Couty indicated it would do so as of August 27. Santa Fe County was already issuing them.
On September 3, Judge Malott reopened the case on a motion from New Mexico Association of Counties seeking to intervene in this case. The court allowed the group to intervene and granted final declaratory judgement to the plaintiffs, allowing the Association to seek further review by the state Supreme Court.
State Supreme Court
On September 5, 2013, the Association of Counties petitioned New Mexico's Supreme Court for a "writ of superintending control", a legal measure which would "create a definitive—and uniform—legal opinion for clerks across the state to rely on rather than waiting for possibly lengthy appeals out of several counties" raised at the District Court level.
On September 6, the New Mexico Supreme Court docketed this case for an Extraordinary Writ Proceeding. Oral argument took place on October 23, 2013. While the court did not issue an opinion on October 23, same-sex marriage advocates quoted in the Albuquerque Journal after the hearing said they were encouraged by the justices' statements, which the Journal said included "tough" and "pointed questions" for attorneys representing Republican state legislators seeking a court ban on same-sex marriage in New Mexico. Albuquerque-market television news station KRQE reported Republican Senator Bill Sharer suggested voters could remove Supreme Court justices from office, vote out state legislators or pass a new constitutional amendment if they are unhappy with how the court rules.
Hanna v. Salazar
On June 6, 2013, Alexander Hanna and Yon Hudson, represented by Brian Egolf, Kate Ferlic and John Day, filed a similar lawsuit, Hanna v. Salazar, in district court against the Santa Fe County Clerk and the state attorney general. On June 27, following the U.S. Supreme Court ruling in United States v. Windsor, the lawsuit was withdrawn from district court and filed in the New Mexico Supreme Court. On July 22, Attorney General King told the court that "New Mexico's guarantee of equal protection to its citizens demands that same-sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens", but he argued that the court lacks the authority to order a county clerk to issue the marriage license as the plaintiffs have requested, which only officers of the state's executive branch can do. He warned the court that doing so could invite myriad lawsuits "concerning any dispute a party has with any local or county official". On August 16, the Supreme Court declined to hear this case and a similar one, but said that the plaintiffs were entitled to an "expedited review" in the district court.
On August 22, 2013, New Mexico District Judge Sarah Singleton ordered Santa Fe County Clerk Geraldine Salazar to begin issuing marriage licenses to same-sex couples or show cause why the county should not comply. Egolf told reporters, "This will be the first time a court anywhere in New Mexico ... has ordered same-sex couples to be married." Salazar said she was "a fervent supporter of same-sex marriage in New Mexico" and would issue the licenses to Hanna and Hudson and any other qualified same-sex couples. She began issuing marriage licenses to same-sex couples, including Hanna and Hudson, on August 23.
About a dozen same-sex couples were married in a joint ceremony in the county commission chambers Subsequently, defendant Geraldine Salazar, in her official capacity as county clerk, was listed as a defendant in Griego v. Oliver, with this related case (see above) before the New Mexico Supreme Court to determine statewide applicability of lower (district) court legalization of same-sex marriage.
Stark v. Martinez
On August 28, 2013, in Stark v. Martinez, New Mexico District Judge Jeff F. McElroy issued an alternate writ of mandamus ordering Taos County Clerk Anna Martinez to start issuing same-sex marriage licenses or to appear to show cause why she could not. The clerk said she would not contest the order and would begin issuing gender-neutral marriage licenses to same-sex couples.
On August 29, 2013, in Sharer v. Ellins, seven Republican State legislators-Senators William Sharer and Steven Neville, Representatives David Gallegos, Jimmie Hall, Yvette Herrell, Dennis Roch, and James Strickler- filed a lawsuit in the Third Judicial District Court against Doña Ana County Clerk Lynn Ellins seeking an immediate stay of the issuance of marriage licenses to same-sex couples. The case was assigned to Judge James T. Martin. On September 3, 2013, eight additional Republican lawmakers joined the suit against Ellins. They are: Paul Bandy, Jason Harper, Nora Espinoza, Larry Larranaga, Anna Crook, Bob Wooley, Pat Woods and Sharon Clahchischilliage. The group filed similar suits against the clerks of Valencia and San Miguel counties. On August 30, 2013, the attorney for Lynn Ellins objected to Judge Martin, who agreed to recuse himself. A new judge, Manuel I. Arrieta, was assigned to the case on September 17, 2013.
In 2006, a study by the Williams Institute at the UCLA School of Law concluded that allowing same-sex couples to marry would have a positive effect on New Mexico’s state budget. Allowing same-sex couples to marry would result in a net gain of approximately $1.5 million to $2 million each year for the State. This net impact will be the result of savings in expenditures on state means-tested public benefit programs and an increase in sales and lodging tax revenue from weddings and wedding-related tourism.
In April 2008, the Williams Institute of the UCLA School of Law, using data from the United States Census Bureau, issued a "Census Snapshot" that concluded, "While in many respects New Mexico’s same-sex couples look like married couples, same-sex couples with children have fewer economic resources to provide for their families than married parents and lower rates of home ownership."
Analyzing census data on same-sex unmarried-partner households, the report determined that:
- In 2000, there were 4,496 same-sex couples living in New Mexico. By 2005, the number of same-sex couples disclosing their partnerships to the census bureau had increased to 6,063.
- In 2005, there were an estimated 68,411 gay, lesbian, and bisexual people (single and coupled) living in New Mexico.
- There are more female same-sex couples (58%) than male same-sex couples (42%) in New Mexico.
- Individuals in same-sex couples are, on average, 42 years old, and significantly younger than individuals in married couples (48 years old) in New Mexico.
- Same-sex couples live in every county in New Mexico and constitute 1.2% of coupled households and 0.7% of all households in the state.
- 71% of individuals in same-sex couples are employed, compared to 60% of married individuals.
- The average household income of same-sex couples is $53,720, compared to $59,692 for married couples. The median income of both same-sex and married coupled households in New Mexico is $47,000.
- 66% of same-sex couples in New Mexico own their home, compared to 83% of married couples.
- 27% of same-sex couples in New Mexico are raising children under the age of 18.
- As of 2005, an estimated 3,624 of New Mexico’s children were living in households headed by same-sex couples.
- 9% of New Mexico’s adopted children (or 1,056 children) live with a lesbian or gay parent.
A June 2011 Public Policy Polling survey found that 42% of New Mexico voters thought that same-sex marriage should be legal, while 48% thought it should be illegal and 10% were not sure. A separate question in the same survey found that 68% of New Mexico voters supported legal recognition of same-sex couples, with 37% supporting same-sex marriage, 31% supporting civil unions, 30% opposing all legal recognition, and 2% not sure.
A December 2011 Public Policy Polling survey found 45% of New Mexico voters thought that same-sex marriage should be legal, while 43% thought it should be illegal and 12% were not sure. A separate question in the same survey found that 67% of New Mexico voters supported legal recognition of same- sex couples, with 42% supporting same-sex marriage, 25% supporting civil unions, 32% opposing all legal recognition, and 2% not sure.
In a poll conducted by the Anzalone Liszt Grove Research for organizations backing the campaign “Why Marriage Matters New Mexico" between September 18-22, 2013, 51% of polled voters responded in favor of same-sex marriage with 42% opposed to the idea. The remaining 7 percent didn’t know or refused to answer. The company surveyed 502 registered voters statewide by phone. The margin of error is plus or minus 4.4 percentage points.
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