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Religious Tolerance logo

Same-sex marriage (SSM) in New Mexico:

State statutes & constitution clauses impacting SSM.
2004: Temporary sale of marriage licenses.

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State statutes and Constitutional articles that may impact same-sex marriage:

The New Mexico Bill of Rights and marriage laws appears to make room for same-sex couples to marry:

bullet 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:

bullet Same-sex couples are composed of two "persons," and

bullet 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.

bullet 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:
bullet Article 1: Laws governing "Marriage in General:"
bullet 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:
bullet The premarital physical examination results have separate lines for "Bride" and "Groom."

bullet The statement by the couple that there is no legal impediment to the marriage has columns or a "Male Applicant" and "Female Applicant."

bullet The area where the couple signs has separate spaces for "Groom" and "Bride."

bullet Article 2: Laws governing "Rights of married persons generally:"
bullet Items 40-2-1, -2, -3 and -8 identify the couple as being composed of husband and wife.

bullet 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:
bullet They are too young (40-1-6),

bullet Too closely related genetically (40-1-9), or

bullet 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 that:

"Polygamous or plural marriages and polygamous cohabitation are forever prohibited." 2

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Existing orders, bills & laws impacting gays, lesbians and same-sex couples:

bullet On 1985-APR-1, the governor issued an executive order protecting gay and lesbian employees of the government from discrimination. 3

bullet 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

bullet 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.

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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:

"Dunlap 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. He said:

"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.

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Discussion of this topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Constitution of the State of New Mexico, Adopted January 21, 1911," at:
  2. New Mexico Statutes "40-1-18. Form of application, license and certificate (1961)," and others, at:
  3. "New Mexico," Lambda Legal, at:
  4. "New Mexico Gay Marriage Ban Dies," Data Lounge, 1998-FEB-24, at:
  5. "New Mexico Marks Gay Rights Win," DataLounge, 2003-MAR-24, at:
  6. Jeni Horn, "Marriage definition preserved in Ohio," Talon News, 2004-JAN-23, at:
  7. "Developments in same-sex marriage issue," Mercury News, 2004-FEB-20, at:
  8. 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.
  9. Tony Perkins, "New Mexico Joins Anarchy, Issues Homosexual 'Marriage' Licenses," Washington Update, 2004-FEB-20.

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Home > Religious info. > Basic > Marriage > SSM > SSM sub menu > New Mexico > here

Home > "Hot" topics > Homosexuality > SSM > SSM sub menu > New Mexico > here

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Copyright © 2004 to 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2004-FEB-21
Latest update: 2013-AUG-26
Author: B.A. Robinson

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