BY ARTHUR S. LEONARD | New Mexico Attorney General Gary K. King, a Democrat, issued a formal opinion on January 4 taking the position that under principles of comity New Mexico would recognize same-sex marriages validly performed elsewhere, even though the state’s laws do not provide for them to be contracted within the state.
King’s formal opinion was co-signed by Assistant Attorney General Elaine P. Lujan, presumably its principal author.
King hedged his bets, however, by stating, “We cannot predict how a New Mexico court would rule on this issue,” explaining that this was the opinion of the Attorney General’s Office “after review of the law in this area.” It is actually the absence of law that is critical here; unlike all but a handful of states, New Mexico has never adopted a statute or constitutional provision that specifically prohibits the recognition of same-sex marriages.
State AG finds “comity” principles and lack of strong adverse policy argue yes
After observing that under the federal Defense of Marriage Act (DOMA) New Mexico would not be required to recognize same-sex marriages performed elsewhere if it did not want to, King’s opinion went directly to the “principle of comity,” observing, “Ordinarily, as a matter of comity, a marriage valid when and where celebrated is valid in New Mexico.” That proposition was specifically supported by a 1990 ruling from the New Mexico Supreme Court.
King pointed out that New Mexico has codified this general rule in a statute that provides that “all 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 this recognition rule, King noted –– cases where a marriage is “contrary to a state’s public policy.” New Mexico, the attorney general concluded, would recognize a “valid out-of-state marriage… as long as the marriage does not offend a sufficiently strong or overriding public policy.”
He rejected the idea that the state’s failure to affirmatively authorize same-sex marriages would qualify as such a state policy, noting that New Mexico has recognized a variety of marriages performed elsewhere that could not have arisen or been performed within the state, such as uncle-niece and “common law” marriages.
King referred to the recent opinion issued by the Maryland Attorney General’s Office, reaching a similar conclusion, noting that the lack of a statute expressly forbidding such recognition suggested there was no strong public policy basis to deny it.
“The federal DOMA authorizes states to prohibit the recognition of out-of-state, same-sex marriages,” wrote King. “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.”
He also discounted the weight of an “advisory letter” that had been sent by an earlier attorney general, Democrat Patricia Madrid, to a state senator seeking clarification of the issue in 2004, at a time when the same-sex marriage debate had come to a boil in many places as a result of the 2003 Massachusetts marriage decision and the false spring of same-sex marriage licenses being issued without state authorization in a number of local jurisdictions, most prominently San Francisco.
“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,” wrote King. “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.”
The Associated Press reported that Democratic House Judiciary Committee Chair Al Park, who requested the AG’s opinion because of queries he’s gotten from marriage equality supporters, said he agrees with the conclusion but warned that opponents of gay marriage might be “galvanized” by King’s answer.
A 2008 intermediate appellate ruling in New York established a statewide precedent recognizing valid marriages by same-sex couples contracted in other jurisdictions, which accelerated a trend already underway for state and local government authorities here to extend such recognition.