Same-sex marriage in New Mexico: Difference between revisions

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Advocacy group Freedom to Marry summarizes the legal situation as of early 2011 this way:<ref>{{cite web|last=Freedom to Marry|title=New Mexico|url=http://www.freedomtomarry.org/states/entry/c/new-mexico|publisher=Freedomtomarry.org|accessdate=27 March 2011}}</ref>
Advocacy group Freedom to Marry summarizes the legal situation as of early 2011 this way:<ref>{{cite web|last=Freedom to Marry|title=New Mexico|url=http://www.freedomtomarry.org/states/entry/c/new-mexico|publisher=Freedomtomarry.org|accessdate=27 March 2011}}</ref>
<blockquote>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 [[Same-sex_marriage_in_Massachusetts|Massachusetts]] (or other jurisdictions that provide equality) 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.</blockquote>
<blockquote>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 [[Same-sex_marriage_in_Massachusetts|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.</blockquote>


===Recognition of out-of-state marriages===
===Recognition of out-of-state marriages===

Revision as of 09:17, 5 December 2012

Part of the LGBT rights series
Marriage

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See also
Notes
  1. KoN: Performed in the Netherlands proper, including the Caribbean Netherlands. Registered in Aruba, Curaçao and Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. NZ: Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. UK: Neither performed nor recognized in six British Overseas Territories.
  4. US: Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. Israel: Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. EU: The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. Cambodia: Recognition of a "declaration of family relationship", which may be useful in matters such as housing, but they are not legally binding.
  8. China: Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. HK: Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. India: Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. Japan: Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. Namibia: Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. Romania: Hospital visitation rights through a "legal representative" status.
* Not yet in effect
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Same-sex marriages are not performed in the state of New Mexico, which also does not provide civil unions or domestic partnerships. New Mexican 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.

Law

The definition of marriage and the validity of out-of-state marriages are given as follows in New Mexico Statutes §40-1 and §40-4.

  • 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. [1]
  • 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. [1]

Advocacy group Freedom to Marry summarizes the legal situation as of early 2011 this way:[2]

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

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?"

The Attorney General stated his conclusion thus:[3]

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."[4]

However, it remains to be seen whether New Mexico courts or the state legislature will affirm the Attorney General's opinion, which does not have the force of law.[5] 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." [6]

History

2004

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,[7] 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."[8]

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.[9] 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."[10] The same number of 66 licenses issued is stated in Dunlap's own motion filed with the Supreme Court of New Mexico.[11] 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.[12]

By the end of the day, however, New Mexico state attorney general Patricia Madrid issued an opinion stating that the licenses were "invalid under state law",[13][11] and the Sandoval County clerk's office stopped issuing them at 4:15 pm that 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 state supreme court for permission to continue issuing the licenses, but on July 8, 2004, the supreme court rejected the motion. The restraining order was never lifted,[14] and Dunlap, whose term ended on January 1, 2005, was heavily criticized for her actions by the local Republican party and by other county and state officials.[15][9][14]

2007

On July 13, 2007, a change in state policy in Massachusetts[16] (the only state in the United States then performing same-sex marriages) allowed officials of that state to marry couples from states such as New Mexico which have no specific prohibition against same-sex marriage.[17]

New Mexican same-sex couples were already able to marry in such countries as Canada, where the laws of the state or country of origin of the couple are not an issue, and by mid-2008, same-sex couples were able to marry in both Massachusetts and California without regard to the laws of their state of residence. (However, under the federal Defense of Marriage Act, other states are not obliged to recognize any same-sex marriages, and same-sex couples who married were still not entitled to any federal benefits or recognition.)

According to civil-rights organization Freedom to Marry, "the New Mexico state government has not taken action to ensure [same-sex marriages] will be honored."[18] In a press release on July 27, 2007, the ACLU of New Mexico cautioned that "while we have made tremendous progress in persuading the state that it's unfair to deny same-sex couples legal protections for their families, we still have a ways to go before we can expect the state to recognize the marriages of same-sex couples."[17]

2008

  • In January, domestic partnership bill HB 9,[19] advocated by governor Bill Richardson as part of his legislative agenda,[20] passed the state's House by a 33 to 31 vote and was sent to the state Senate, which took no action on it.[21][22][23][24] 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.[25]

2009

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.[26]

2010

  • 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."[27]
  • A proposed amendment to the state constitution sponsored by Senator William Sharer (R-Farmington) that would have limited marriage to opposite-sex couples was also defeated in this legislative session by another Senate committee.[28]
  • On August 9, 2010, after a same-sex couple who were married in Sandoval County (see above) filed for divorce in Santa Fe, State District Judge Sarah Singleton ruled that the marriage license issued to them in 2004 had indeed been valid, and thus the dissolution of their marriage was subject to divorce proceedings in court. According to the Santa Fe New Mexican:[29]

Singleton avoided the broader issue of whether gay marriage is legal in New Mexico, but stuck to the issue of whether the gay marriage licenses were invalid from the beginning, or could be declared invalid later. Dunlap may have been negligent or mistaken, Singleton said, but the licenses she issued are "not void from the inception, but merely voidable." The judge said that under state statutes, the only type of marriage that might be void from the beginning would be an incestuous one. Dunlap's same-sex marriage licenses were never invalidated because the matter was never litigated to its conclusion after former Attorney General Patricia Madrid persuaded Dunlap to stop issuing them.

Whether this ruling will have any broader effect on same-sex unions in the state has yet to be determined.[30][31]

Demographics

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."[32]

Analyzing census data on same-sex "unmarried-partner" households, the report determined, among other things, 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

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.[33]

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.[34]

Economic effects

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.[35] 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

  1. ^ a b NextPage - LivePublish. "New Mexico Compilation Commission - Search Statutes, Rules and Decisions". Conwaygreene.com. Retrieved 2010-08-21.
  2. ^ Freedom to Marry. "New Mexico". Freedomtomarry.org. Retrieved 27 March 2011.
  3. ^ Democracy for New Mexico. "Attorney General Gary King Issues Opinion Supporting Recognition of Out-of-State Same-Sex Marriages". Democracyfornewmexico.com. Retrieved 27 March 2011.
  4. ^ Democracy for New Mexico. "Attorney General Gary King Issues Opinion Supporting Recognition of Out-of-State Same-Sex Marriages". Democracyfornewmexico.com. Retrieved 27 March 2011.
  5. ^ "NM Attorney General: Out-of-state marriages of same-sex couples will likely be valid in NM," Freedom to Marry, 5 January 2011, accessed 27 October 2011
  6. ^ Terrell, Steve (January 5, 2011). "AG: Other states' same-sex marriages valid in N.M." Santa Fe New Mexican. Retrieved 27 March 2011.
  7. ^ "America's Struggle for Same-Sex Marriage - Cambridge University Press". Cambridge.org. Retrieved 2010-08-21.
  8. ^ "Same-Sex Couples Line Up in Sandoval County To Get Married". Albuquerque Journal. Retrieved 2010-08-21.
  9. ^ a b "Up Front". Sandoval Signpost. Retrieved 2010-08-21.
  10. ^ Motion to Dismiss, State of New Mexico v. Victoria Dunlap
  11. ^ a b http://www.domawatch.com/cases/newmexico/dunlapvmadrid/040609PetitionForWritOfMandamus.pdf
  12. ^ Marech, Rona (February 20, 2004). "Gay unions in New Mexico / But state forces county clerk to stop". The San Francisco Chronicle.
  13. ^ "New Mexico Marriage/Relationship Recognition Law". HRC. Retrieved 2010-08-21.
  14. ^ a b Akers, Joshua. "N.M. Gay Marriage Debate Continues". Albuquerque Journal. Retrieved 2010-08-21.
  15. ^ "News : A look back: 2004, the year in review: 12 months of change, growth and new directions". Rio Rancho Observer. Retrieved 2010-08-21.
  16. ^ Abel, David (July 27, 2007). "Same-sex couples from NM allowed to marry in MA". The Boston Globe. Retrieved 26 December 2007.
  17. ^ a b "Civil Rights Groups Hail Massachusetts Decision Allowing NM Same-Sex Couples to Marry". American Civil Liberties Union of New Mexico. Retrieved 2010-08-21.
  18. ^ "Freedom to Marry". Freedom to Marry. Retrieved 2010-08-21.
  19. ^ "Text of House Bill 9".
  20. ^ "Committee tables Gov.'s domestic partnership plan". Las Cruces Sun-News. Retrieved 2010-08-21.
  21. ^ "New Mexico House Passes Domestic-Partnership Bill".
  22. ^ "Bill for domestic partner rights passes through New Mexico House of Representatives".
  23. ^ "New Mexico Closer to Domestic Partnerships".
  24. ^ "New Mexico House passes partner bill".
  25. ^ "State Legislation Listing". HRC. Retrieved 2010-08-21.
  26. ^ Domestic partnerships bill fails by 8-vote margin
  27. ^ "Domestic partnerships done for 2010 but will be back, supporters say". New Mexico Independent. February 15, 2010. Retrieved 27 March 2011.
  28. ^ "Anti-gay-marriage bill dies in committee". New Mexico Independent. February 15, 2010. Retrieved 27 March 2011.
  29. ^ Sharpe, Tom (August 9, 2010). "Judge: No easy way out for same-sex couple". Santa Fe New Mexican. Retrieved 27 March 2011.
  30. ^ http://www.leagle.com/unsecure/news.do?feed=yellowbrix&storyid=148284535
  31. ^ "NM judge rules same-sex marriage license valid". KOB.com. Retrieved 2010-08-21.
  32. ^ New Mexico census snapshot
  33. ^ New Mexico opposes legal gay marriage, Martinez strong
  34. ^ New Mexico for gay marriage
  35. ^ "eScholarship: The Impact on New Mexico's Budget of Allowing Same-Sex Coules to Marry". Repositories.cdlib.org. 2006-03-01. Retrieved 2010-08-21.

External links

Bibliography

  • 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)
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