Recognition of same-sex unions in New Mexico

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Same-sex marriages are not licensed in the state of New Mexico, which also does not provide civil unions or domestic partnerships. New Mexico law does not explicitly permit or prohibit same-sex marriage, and it is unclear whether the state would recognize such marriages established in other jurisdictions. As of 2013 it was the only state without a statute explicitly addressing same-sex marriage.[1]

Contents

Law [edit]

New Mexico Statutes §40-1 and §40-4 define marriage and the validity of out-of-state marriages:[2]

  • "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:[3]

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 [edit]

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.[4]

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:[5]

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."[6]

The Attorney General's opinion, which does not have the force of law, has not been affirmed by New Mexico's courts or state legislature.[7] 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."[8]

Sandoval marriages, 2004 [edit]

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,[9] began issuing marriage licenses to same-sex couples, claiming legal justification for her action because New Mexico marriage law does not mention gender. Dunlap called the county attorney for input after receiving an inquiry about same-sex ceremonies: "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."[10]

The Sandoval County courthouse was quickly thronged by same-sex couples applying for marriage licenses as the story was broadcast nationwide by the news media.[11] The number of marriage licenses issued to same-sex couples was reported by various news sources as 64, 66, 67, or 68, but a suit filed against Dunlap in July by the attorney general states 66 licenses were issued, and further states that by March 23, 64 of the couples had married "as evidenced by the return and filing of licenses and Certificates of Marriage."[12] The same number of 66 licenses issued is stated in Dunlap's own motion filed with the Supreme Court of New Mexico.[13] News reports stated that 26 couples had been married on the courthouse steps on February 20 by two local ministers who showed up to conduct the ceremonies.[14]

By the end of the day, however, New Mexico Attorney General Patricia Madrid issued an opinion stating that the licenses were "invalid under state law",[15][13] and the Sandoval County Clerk's office stopped issuing them the same day.

A district court judge later issued a restraining order against Dunlap, prohibiting her from issuing any further licenses to same-sex couples. 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,[16] and Dunlap, whose term ended on January 1, 2005, was heavily criticized for her actions by the local Republican Party and by county and state officials.[17][11][16]

The validity of the same-sex marriages licensed in 2004 is uncertain. 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 not otherwise address the legal status of same-sex marriage in the state.[18][19][20]

Legislation [edit]

2008 [edit]

In January, domestic partnership bill HB 9,[21] advocated by governor Bill Richardson as part of his legislative agenda,[22] passed the state's House by a 33 to 31 vote and was sent to the state Senate, which took no action on it.[23][24][25][26] 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.[27]

2009 [edit]

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.[28]

2010 [edit]

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 Gov. Bill Richardson who made extending many of the same rights enjoyed by married couples to gays and lesbians part of his legislative agenda."[29] 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.[30]

2013 [edit]

On January 22, 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.[31] On January 31, the House Consumer and Public Affairs Committee approved the measure in a 3-2 vote.[32] On February 21, the Voters and Elections Committee defeated it on a 7-4 vote.[33] 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.[34]

Santa Fe, 2013 [edit]

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 also released a legal opinion that "New Mexico's statutory definition of marriage is gender-neutral."[35] Santa Fe's mayor urged county clerks to issue marriage licenses to same-sex couples, saying "We think it's legal, right now, and they should start."[36][37] However, on the same day, Santa Fe County Clerk Geraldine Salazar told the Santa Fe New Mexican that until the law was clarified by state courts or the Legislature, she would not feel legally competent to issue marriage licenses to same-sex couples; Mayor Coss hinted that the clerk's refusal could lead to a court case to settle the issue.[38]

On April 24, 2013, by a vote of five in favor, one against and two abstentions, the Santa Fe City Council passed a motion recognizing gay marriage as legal in New Mexico and advising county clerks to issue marriage licenses to same-sex couples.[39]

Demographics [edit]

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."[40]

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.

Public opinion [edit]

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.[41]

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.[42]

Economic effects [edit]

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.[43] 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.

References [edit]

  1. ^ Grovum, Jake (February 12, 2013). "How New Mexico Legalized Gay Marriage – For 8 Hours". Stateline. Retrieved May 9, 2013. 
  2. ^ "New Mexico Compilation Commission". Conwaygreene.com. Retrieved August 21, 2010. 
  3. ^ "New Mexico". Freedom to Marry. Retrieved March 27, 2011. 
  4. ^ "Civil Rights Groups Hail Massachusetts Decision Allowing NM Same-Sex Couples to Marry". American Civil Liberties Union of New Mexico. May 5, 2010. Retrieved May 10, 2013. 
  5. ^ "Attorney General Gary King Issues Opinion Supporting Recognition of Out-of-State Same-Sex Marriages". Democracy for New Mexico. Retrieved March 27, 2011. 
  6. ^ "Attorney General Gary King Issues Opinion Supporting Recognition of Out-of-State Same-Sex Marriages". Democracy for New Mexico. Retrieved March 27, 2011. 
  7. ^ "NM Attorney General: Out-of-state marriages of same-sex couples will likely be valid in NM". Freedom to Marry. January 5, 2011. Retrieved October 27, 2011. 
  8. ^ Terrell, Steve (January 5, 2011). "AG: Other states' same-sex marriages valid in N.M.". Santa Fe New Mexican. Retrieved March 27, 2011. 
  9. ^ "America's Struggle for Same-Sex Marriage". Cambridge University Press. Retrieved August 21, 2010. 
  10. ^ "Same-Sex Couples Line Up in Sandoval County To Get Married". Albuquerque Journal. Retrieved August 21, 2010. 
  11. ^ a b "Up Front". Sandoval Signpost. Retrieved August 21, 2010. 
  12. ^ Motion to Dismiss, State of New Mexico v. Victoria Dunlap.
  13. ^ a b Petition for Writ of Mandamus, State of New Mexico v. Victoria Dunlap.
  14. ^ Marech, Rona (February 20, 2004). "Gay unions in New Mexico, but state forces county clerk to stop". The San Francisco Chronicle. 
  15. ^ "New Mexico Marriage/Relationship Recognition Law". HRC. Retrieved August 21, 2010. 
  16. ^ a b Akers, Joshua. "N.M. Gay Marriage Debate Continues". Albuquerque Journal. Retrieved August 21, 2010. 
  17. ^ "A look back: 2004, the year in review: 12 months of change, growth and new directions". Rio Rancho Observer. Retrieved August 21, 2010. 
  18. ^ Sharpe, Tom (August 9, 2010). "Judge: No easy way out for same-sex couple". Santa Fe New Mexican. Retrieved March 27, 2011. 
  19. ^ http://www.leagle.com/unsecure/news.do?feed=yellowbrix&storyid=148284535
  20. ^ "NM judge rules same-sex marriage license valid". KOB.com. Retrieved August 21, 2010. 
  21. ^ Text of House Bill 9.
  22. ^ "Committee tables Gov.'s domestic partnership plan". Las Cruces Sun-News. Retrieved August 21, 2010. 
  23. ^ "New Mexico House Passes Domestic-Partnership Bill". 
  24. ^ "Bill for domestic partner rights passes through New Mexico House of Representatives". 
  25. ^ "New Mexico Closer to Domestic Partnerships". 
  26. ^ "New Mexico House passes partner bill". 
  27. ^ "State Legislation Listing". HRC. Retrieved August 21, 2010. 
  28. ^ "Domestic partnerships bill fails by 8-vote margin". 
  29. ^ "Domestic partnerships done for 2010 but will be back, supporters say". New Mexico Independent. February 15, 2010. Retrieved March 27, 2011. 
  30. ^ "Anti-gay-marriage bill dies in committee". New Mexico Independent. February 15, 2010. Retrieved March 27, 2011. 
  31. ^ Boyd, Dan (January 23, 2013). "Gay Marriage Debate Returns To Roundhouse". Albuquerque Journal. Retrieved February 1, 2013. 
  32. ^ "NM committee OKs proposal for same-sex marriage". Las Cruces Sun-News. January 31, 2013. Retrieved February 1, 2013. 
  33. ^ "Gay marriage proposal fails in NM House panel". KOB-TV. February 21, 2013. Retrieved February 21, 2013. 
  34. ^ Terrell, Steve (February 5, 2013). "House panel kills bill on definition-of-marriage amendment". Retrieved February 6, 2013. 
  35. ^ Combs, Jacob. "Developing: Santa Fe officials urge same-sex couples to wed, saying New Mexico law already allows marriage equality," Equality on Trial, 19 March 2013, accessed 20 March 2013.
  36. ^ Johnson, Chris (20 March 2013). "Santa Fe mayor says 'time has come' for N.M. marriage equality". Washington Blade. Retrieved 20 March 2013. 
  37. ^ Travis, Shannon (20 March 2013). "Santa Fe mayor urges allowing same-sex marriage in New Mexico". CNN Politics. Retrieved 20 March 2013. 
  38. ^ Grimm, Julie Ann. "Santa Fe leaders ask county clerks to honor same-sex marriage," The New Mexican, 19 March 2013, accessed 20 March 2013.
  39. ^ "BREAKING: Santa Fe council passes measure supporting gay marriage," http://www.abqjournal.com/main/2013/04/24/abqnewsseeker/breaking-santa-fe-council-passes-measure-supporting-gay-marriage.html
  40. ^ "New Mexico census snapshot" (PDF). 
  41. ^ "New Mexico opposes legal gay marriage, Martinez strong" (PDF). 
  42. ^ "New Mexico for gay marriage" (PDF). 
  43. ^ "eScholarship: The Impact on New Mexico's Budget of Allowing Same-Sex Coules to Marry". Repositories.cdlib.org. March 1, 2006. Retrieved August 21, 2010. 

External links [edit]

Bibliography [edit]

  • Pinello, Daniel R. America's Struggle for Same-Sex Marriage, Cambridge University Press, 2006. (ISBN 9780521848565) (Chapter 1 contains interviews with Victoria Dunlap and couples who participated in the Sandoval County marriages)
Same-sex marriage legalized:
Laws not yet in effect
Same-sex marriage recognized,
but not performed:
Civil union or domestic partnership legal:
Same-sex marriage prohibited by statute:
Same-sex marriage prohibited
by constitutional amendment:
All types of same-sex unions prohibited
by constitutional amendment:
Recognition of same-sex unions undefined
by statute or constitutional amendment:
Notes

† California's laws on marriage are complicated: All out-of-state same-sex marriages are given the benefits of marriage under California law, although only those performed before November 5, 2008, are granted the designation "marriage". The constitutional ban on same-sex marriage remains in limbo following a federal case finding the ban unconstitutional, which is currently stayed pending a Supreme Court decision.

* 64 same-sex marriages were issued in 2004: one of these marriages was recognized as valid for the purposes of divorce in 2010. However this was a narrow ruling, and the recognition of the marriages is unknown elsewhere.
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