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F I S C A L I M P A C T R E P O R T

SPONSOR Vaughn

ORIGINAL DATE

LAST UPDATED

1/29/07

HB HJR2

SHORT TITLE

Defines a Recognized, Valid Marriage as Between

One Man and One Woman

SB

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to HB395

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

House Joint Resolution 2 proposes amending Article 20 of the New Mexico Constitution to de-

fine marriage as the union of one man and one woman only and to deny any right or claim to

marriage between persons of the same sex. If the resolution passes, the proposed amendment

would be submitted to New Mexico voters for approval or rejection at the next general election

or at any special election called for that purpose prior to the next general election.

SIGNIFICANT ISSUES

This amendment appears to be intended to prohibit same-sex marriages from being performed or

recognized in New Mexico.

NMSA 1978, Section 40-1-4 grants comity to marriages valid in other states. In its entirety, it

provides:

House Joint Resolution 2 – Page

2

“All marriages celebrated beyond the limits of this 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.

Thus, under current New Mexico law, same-sex marriages validly performed in another state or

may be recognized in New Mexico. By advisory letter dated February 20, 2004, the Attorney

General previously opined that the performance of same-sex marriages in New Mexico was not

authorized under the then current status of the law.

OTHER SUBSTANTIVE ISSUES

The Attorney General’s Office notes that if HJR 2 passes and New Mexico voters subsequently

approve the proposed amendment, same-sex marriages validly performed in another state or

country would not be recognized in New Mexico. HJR 2 may invite opponents to challenge it on

the grounds that it encompasses more than one subject, in violation of N.M. Constitution, Article

IV, Section 16. Opponents may argue that HJR 2 attempts to “logroll" several amendments into

one, as it not only defines marriage but also arguably may be interpreted to prohibit same sex

marriages, civil unions, and domestic partnerships, and prohibit the state from conferring bene-

fits on domestic partners. While such a challenge was unsuccessful in Arizona, we do not know

how New Mexico courts would view a similar challenge if brought here.

In Arizona Together v. Brewer

, the Arizona Supreme Court examined whether Proposition 107,

a constitutional amendment proposed by voter initiative, complied with the separate amendment

rule of Article 21, Section 1 of the Arizona Constitution. Proposition 107 proposed amending

the Arizona Constitution by defining marriage and prohibiting the state and its political subdivi-

sions from creating or recognizing a legal status for unmarried persons similar to that of mar-

riage. Opponents argued that Proposition 107 not only would define marriage, but also could (1)

prohibit same-sex marriages, (2) prohibit civil unions and domestic partnerships, and (3) prohibit

the state and its political subdivisions from conferring benefits and rights on domestic partners.

See

2007 WL 80728, at 1. The Arizona Supreme Court agreed with a lower court decision that

Proposition 107 constitutes a single amendment after analyzing the proposition under its “com-

mon purpose or principle" test. See

id

. at 6. The Arizona Supreme Court held that the provi-

sions in Proposition 107 shared both topicality and interrelatedness and were sufficiently related

to a common purpose or principle that the proposal could be said to “constitute a consistent and

workable whole on the general topic embraced, that, logically speaking . . . should stand or fall

as a whole." See

id

. at 23 (internal quotations omitted).

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Relates to HB 395

EO/nt