New Mexico Attorney General Says State Can Recognize Same-Sex Marriages Performed Elsewhere

NM Attorney General Gary King

New Mexico may soon join the ranks of New York, Rhode Island and Maryland as states that don’t perform same-sex marriages, but recognize gay couples married in other states, according to an opinion issued by attorney general Gary King. “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,” King said:

As discussed above, the federal DOMA authorizes states to prohibit the recognition of out-of-state, same-sex marriages. While many states have enacted such a prohibition, New Mexico has not. Without an explicit statute, the principle of comity, codified in New Mexico in Section 40-1-4, would likely guide the analysis in this area. In Leszinske and Gallegos, New Mexico courts recognized out-of-state marriages pursuant to Section 40-1-4, despite state laws that would have precluded those marriages from being performed in New Mexico. Likewise, the Attorney General of Maryland concluded that Maryland would likely recognize an out-of-state, same-sex marriage despite a state law that precludes same-sex marriages. Although such state laws indicate an adverse public policy against certain marriages, they are not enough to invoke the public policy exception.

Although New Mexico does not expressly prohibit same-sex marriages, a previous Attorney General issued an advisory letter on this issue….According to the letter, state statutes that refer to a “husband” and a “wife” and the state marriage application form requiring a male and female applicant, suggested that the law in New Mexico contemplates that marriage will 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. Without an identifiable adverse public policy in this area, we conclude that a court addressing the issue would likely hold, pursuant to Section 40-1-4, that a valid same-sex marriage from another jurisdiction is valid in New Mexico.

Five states and Washington D.C. are currently issuing marriage licenses to same-sex couples, and several others may consider the issue in this legislative session. “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,” King concluded.

It’s unlikely that King’s opinion will change state policy, however. New Mexico’s new governor, Susanna Martinez, opposes same-sex marriage and has not been moved by King’s analysis. “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,” a spokesperson told The New Mexican. State Senator William Share (R) also plans to introduce a constitutional amendment “during the upcoming legislative session to define marriage as between a man and woman.”

Former Governor Bill Richardson, was unsuccessful in getting a domestic partnership bill through the legislature.