Attorney General Gary King Issues Opinion Supporting Recognition of Out-of-State Same-Sex Marriages

Now here's some excellent news for folks who believe in equal rights for all under civil law. Today, Attorney General Gary King issued a five-page legal opinion (pdf) that says same-sex marriage licenses granted in other states or countries should be recognized here in New Mexico. The short summary of his opinion states that:

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.

In a press release late this afternoon, AG 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."

Opinion in Response to Question from Rep. Al Park
AG King issued the opinion letter in response to an inquiry made about 18 months ago by State Rep. Al Park (D, HD-26, Albuquerque) in which he posed the question, "Are same-sex marriages performed in other jurisdictions valid in New Mexico?" In response to the opinion, Rep. Park said: 

Same-sex marriage is an issue for New Mexico, just as it is in many parts of the country. I thought it was important to ask AG King to clarify what our law says about these types of marriages. I appreciate King for his opinion, as it helps explain what the law says so that lots of people around New Mexico can understand it and, of course, it recognizes the rule of law in this country. 

Basis of AG's Opinion
According to AG King's opinion, a same-sex marriage that is contracted by residents of a state (or nation) who then move to New Mexico should be recognized as valid. It also appears that if a same-sex couple who live in New Mexico travel to one of the states (or nations) that provide for marriage equality and get married under the rules of that state, they can come back to New Mexico and have their civil marriage recognized here, just as heterosexual couples do:

At least five states and Washington D.C. are currently issuing marriage licenses to same-sex couples and many other states are actively considering doing the same. This increases the likelihood that New Mexico residents of the same sex who married while traveling or who move to New Mexico after marrying in a jurisdiction that allows same-sex marriages will seek to have their marriages recognized in this state.

AG King's opinion explains in the analysis that it is based on existing state law that requires New Mexico to recognize civil marriages performed in other states and nations, as well as the legal principle of comity -- or legal reciprocity among the states and nations. The term means that courts agree to recognize and enforce the valid legal contracts and court orders of other states and countries, when by such enforcement they will not violate their laws or inflict an injury on some one of their own citizens. The opinion analysis states, in part:

Ordinarily, as a matter of comity, a marriage when and where celebrated is valid in New Mexico ... This principle has long been codified in this state. See NMSA 1978 Sec. 40-1-4 (1862-1863). Under Section 40-1-4:

[a]ll marriages celebrated beyond the limits of the 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.

There is a general exception to the principle of comity if a marriage is contrary to a state's public policy. New Mexico applies this exception and will recognize a valid out-of-state marriage pursuant to Section 40-1-4 as long as the marriage does not offend a sufficiently strong or overriding public policy.

In other words, the principle of comity -- and the validity of out-of-state same-sex marriages -- would apply unless New Mexico had a policy in place that would override the principle with an explicit and strong policy banning such marriages. New Mexico has no such policy.

Cases Cited
As justifications for his position, AG King discusses a New Mexico case where the courts recognized a marriage performed in Costa Rica between a woman and her uncle, and a New Mexico case where a common law marriage from Texas was recognized by our courts, despite the fact that nothing in New Mexico law specifically grants validity to such marriages. In fact, New Mexico law considers the marriage between the woman and her uncle to be criminal incest and thus contrary to the public policy of New Mexico. Nonetheless, the appeals court stated that:

.. the dispositive question is whether the marriage offends a sufficiently strong public policy to outweigh the purposes served by the rule of comity ... The Court concluded that New Mexico's public policy against incestuous marriages was not sufficiently strong to preclude the district court from considering the uncle-niece marriage in its custody award.

And in the case dealing with the common-law marriage, our Supreme Court pointed out that:

... the statute does not contain language that would exclude New Mexico residents from the benefit of having their lawful out-of-state marriage recognized ... In other words, Section 40-1-4 applies to New Mexico residents who effectively evade state law that would otherwise preclude their marriage.

Thus, even if a same-sex couple travels to another state to marry (because they can't marry here) and then returns, their marriage should be recognized here in New Mexico.

The AG's opinion then deals with recent action regarding the recognition of out-of-state marriage in the state of Maryland, where the Attorney General recently issued an opinion that the Maryland courts would recognize marriages from other jurisdictions even though the state has a DOMA law:

Like New Mexico, Maryland does not explicitly prohibit or permit the recognition of a same-sex marriage from another jurisdiction ... However, Maryland law, unlike New Mexico's, expressly prohibits same-sex marriages ... Despite this statute, the Maryland Attorney General determined that a Maryland court would likely recognize a same-sex marriage from another jurisdiction.

In addition, AG King's opinion addresses an advisory letter issued in 2004 by previous Attorney General Patricia Madrid that held that because state statutes refer to a "husband" and a "wife" and the state marriage application form requires a male and female applicant, it suggests that the law in New Mexico contemplates that marriage will be between a man and a woman:

In light of Leszinske, Gallegos, and the general law surrounding the public policy exception, we do not believe that the reasoning in the advisory letter is enough to establish a strong or overriding public policy against same-sex marriages in New Mexico.

Same-Sex Marriage and DOMA
New Mexico is one of only a handful of states that have no state-level DOMA (Defense of Marriage Act) law in effect that defines marriage as being only between one woman and one man, although Republicans have introduced legislation every session in recent years to create such a law. Fortunately, these bills have always failed, and former Gov. Bill Richardson was expected to veto any such bill that made it to his desk. However, Susana Martinez, New Mexico's new Republican governor, has stated repeatedly that she is against even domestic partnership legislation, so I'm sure she and other right-wing Republicans will no doubt push hard for a DOMA law now that AG King has issued this ruling.

AG King's opinion applies only to legal rights granted by New Mexico, not the federal government, which still is not allowed to recognize same-sex marriages because of the federal DOMA. DOMA also says that no state (or other political subdivision within the United States) is required to treat as a marriage a same-sex relationship considered a marriage in another state. In other words, it's up to each state to decide how to treat these marriages.

So far, only Rhode Island, New York, Maryland explicitly recognize same-sex marriages from other states, while 12 states, including New Mexico, do not explicitly address same-sex marriages from other jurisdictions. Currently, only Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow civil marriages between persons of the same sex. The California Supreme Court legalized same-sex marriage on June 16, 2008, but on November 4, 2008, voters passed a constitutional amendment (Prop. 8) to restrict marriage to members of the opposite sex. The amendment has since been declared unconstitutional in federal court, but same-sex marriages have not resumed in California because the case is still being appealed. Here's a summary of the California Prop. 8 case to date.

In addition, in two separate cases in July in Massachusetts, U.S. District Judge Joseph Tauro ruled the federal Defense of Marriage Act, known as DOMA, is unconstitutional because it interferes with a state's right to define marriage and denies married gay couples an array of federal benefits given to heterosexual married couples, including the ability to file joint tax returns. The U.S. Justice Department is appealing those cases, and the Obama administration has come under serious criticism related to the appeals. However, President Obama has held that his hand is forced in that Justice must defend all U.S. laws regardless of whether or not the administration agrees with them.

After Judge Tauro's decision, GLAD, the plaintiff in one of the cases, filed similar suits in Connecticut, Vermont, and New Hampshire, where same-sex marriages are also legal and the federal DOMA law denies the married couples their federal marriage benefits.