Same-sex marriage (SSM) in New Mexico:
State statutes & constitution clauses impacting SSM.
2004: Temporary sale of marriage licenses.
State statutes and Constitutional articles that may impact same-sex
The New Mexico Bill of Rights and marriage laws appears to make room for same-sex couples to marry:
||Bill of Rights: The New Mexico Bill of Rights, which forms
Article II of the state Constitution, appears to support of the right of gay
and lesbian couples to marry:
Section 4 states that:
"All persons are born equally
free, and have certain natural, inherent and inalienable rights, among
which are the rights of enjoying and defending life
and liberty, of acquiring, possessing and protecting property, and
of seeking and obtaining safety and happiness." 1
If one considers that:
||Same-sex couples are composed of two "persons," and
||People marry, in part, in order to seek "safety and happiness,"
then the Constitution would seem to guarantee the right of same-sex
and opposite-sex couples to marry.
It may be worth noting that the Bill of Rights guarantees that citizens will enjoy life, and own property but will only be able to "seek" happiness. With a divorce rate approaching 50% in the U.S. this is perhaps all that can be hoped for in marriage.
Section 18 states that:
"No person shall be
deprived of life, liberty or property
without due process of law; nor shall any person be denied
equal protection of the laws. Equality of rights under law shall
not be denied on account of the sex of any person...." 1
All couples cannot all receive "equal protection"
if some are forbidden to marry and others are allowed to
marry. With very few exceptions, Mary can marry Bob or Jim or Sam; but
she is not allowed to marry Sue or Ann or Carol because she is of the
wrong sex. Thus, Mary has been denied equal rights under law because of
her sex. This appears to be a violation of Section 18.
||New Mexico Statutes: These seem to imply that only opposite-sex couples can
marry. Chapter 40 "Domestic Affairs" of the "Statutory Chapters in
New Mexico Statutes" includes:
||Article 1: Laws governing "Marriage in General:"
||Item 40-1-18 is the "Form of application [marriage] license and
certificate." The form contains headings which imply that spouses-to-be
must be of opposite sex:
||The premarital physical examination results have separate lines for "Bride"
||The statement by the couple that there is no legal impediment to the
marriage has columns or a "Male Applicant" and "Female Applicant."
||The area where the couple signs has separate spaces for "Groom"
||Article 2: Laws governing "Rights of married persons generally:"
||Items 40-2-1, -2, -3 and -8 identify the couple as being composed of
husband and wife.
||American Legal Publishing Corporation, a company that makes New
Mexico statutes available on the Internet, includes 200 references to
marriage. There are laws prohibiting couples from marrying if:
||They are too young (40-1-6),
||Too closely related genetically (40-1-9), or
||Already in a valid marriage (30-10-1). 2
Article 21 of the "Compact with the United States", which forms
part of the State constitution, guarantees religious tolerance, but states
or plural marriages and polygamous cohabitation are forever prohibited." 2
Existing orders, bills & laws impacting gays, lesbians and same-sex
||On 1985-APR-1, the governor issued an executive order protecting gay
and lesbian employees of the government from discrimination. 3
||On 1998-FEB-19, Bill SJR-4, a bill to specifically ban same-sex marriage in New
Mexico, was defeated. At the time, it was the fourth such attempt in three
years. A similar bill failed in 2000. 3 As of mid-2013, no such bill has been passed 4
||On 2003-MAR-21, the state legislature broadened the state's Human
Rights Act by approving a bill to prohibit bias
against people based on sexual orientation or gender identification. The
scope of the act includes
employment (in large companies only), housing, credit, public accommodations
and union membership. The vote was essentially along party lines with
Democrats in favor and Republicans opposed. The Senate approved the bill
by a close vote of 22 to 20 later that day. Governor Richardson (D) agreed
to sign the bill. 5
As of 2004-JAN, New Mexico was widely expected to
consider a constitutional amendment soon to restrict
marriage to one man and one woman. 6 However, no such bill was considered until early 2011. It did not proceed.
2004-FEB-20: County Clerk briefly issued marriage licences to same-sex couples:
Following the lead of city
officials in San Francisco, CA who had started to issue marriage licenses to same-sex couples, Sandoval County clerk, Virginia Dunlap (R), began
issuing licenses to same-sex couples. According to the Associated Press:
said she made the decision after County Attorney David Mathews determined New
Mexico law is unclear on the issue. He said state law defines marriage as a
contract between parties but does not mention gender. She said: 'It's
going to be across the country and so we wanted to be ahead of the curve'."
Over 60 couples
applied for licenses. Mercury News said that the:
"County Clerk's Office granted licenses to 26 same-sex couples ...
before state Attorney General Patricia Madrid issued an
opinion in late afternoon saying the licenses were 'invalid under state
law.' The clerk's office stopped issuing licenses and told couples that their
licenses were invalid." 7
State Sen. Steve Komadina criticized Dunlap's decision to issue licenses.
"I feel badly that action was taken before an answer was
obtained. That was very irresponsible and will cause heartache to people on
all sides of the question."
Tony Perkins of the Family Research Council, which has been designated by the Southern Poverty Law Center as an anti-gay hate group, 8 described Dunlap's action as
"defying state law," and as a "rogue action." 9 In reality, there is no state law or clause in the constitution that mentions marriage by same-sex couples or that requires a married couple to be of opposite sexes. It is surprising that Perkins would not be aware of that, because the state is well known for being the only state in the U.S. whose marriage law and state constitution is silent on the matter.
Discussion of this topic continues in the next essay.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Constitution of the State of New Mexico, Adopted January
21, 1911," at: http://www.harbornet.com/
- New Mexico Statutes "40-1-18. Form of application, license and certificate
(1961)," and others, at: http://www.amlegal.com/
- "New Mexico," Lambda Legal, at: http://www.lambdalegal.org/
- "New Mexico Gay Marriage Ban Dies," Data Lounge, 1998-FEB-24,
- "New Mexico Marks Gay Rights Win," DataLounge, 2003-MAR-24,
- Jeni Horn, "Marriage definition preserved in Ohio," Talon
News, 2004-JAN-23, at: http://www.gopusa.com/
- "Developments in same-sex marriage issue," Mercury News,
2004-FEB-20, at: http://www.mercurynews.com/
- From the Winter 2010 issue of the Southern Poverty Law Center's (SPLC) Intelligence Report. The SPLC monitors racist, anti-gay, nativist, and other hate groups in the U.S.
- Tony Perkins, "New Mexico Joins Anarchy, Issues Homosexual
'Marriage' Licenses," Washington Update, 2004-FEB-20.
Copyright © 2004 to 2013 by Ontario Consultants on Religious
Originally written: 2004-FEB-21
Latest update: 2013-AUG-26
Author: B.A. Robinson