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

SPONSOR Rainaldi

ORIGINAL DATE

LAST UPDATED

02/27/07

3/01/07 HB

SHORT TITLE Marriage Defined

SB 816/a SPAC

ANALYST Hanika Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

$.1 see narrative

recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children, Youth & Families Department (CYFD)

Administrative Office of the Courts (AOC)

Public Employees Retirement Association (PERA)

SUMMARY

Synopsis of SPAC Amendment

The Senate Public Affairs Committee Amendment strikes all language relating to same sex

marriages.

Synopsis of Original Bill

Senate Bill 816 seeks to define a valid marriage in New Mexico as being between one man and

one woman. The bill also states that a same sex marriage which is valid and enforceable in

another jurisdiction shall not be valid and enforceable in New Mexico.

FISCAL IMPLICATIONS

Any additional fiscal impact on the judiciary will be proportional to challenges to this law. There

will also be a minimal administrative cost for statewide update, distribution and documentation

of any statutory changes.

Senate Bill 816/a SPAC – Page

2

SIGNIFICANT ISSUES

Senate bill 816 will require that New Mexico not recognize a same sex marriage that is valid in

another jurisdiction. This provision is likely to face constitutional challenges under both the

state and federal constitutions on various legal theories. At some point in the future this topic

will become subject to judicial review and the issue will be decided by the New Mexico Supreme

Court or the United States Supreme Court, or both.

PERFORMANCE IMPLICATIONS

CYFD believes the bill’s prohibition against recognizing same sex marriages that are valid in

other states conflicts with NMSA 1978, Section 40-1-4 which provides, “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."

With the passage of the federal Defense of Marriage Act in 1996, a marriage was explicitly

defined as a union of one man and one woman for the purposes of federal law. However, the

Defense of Marriage Act does not prevent individual states from defining marriage as they see

fit; indeed, most legal scholars believe that the federal government cannot impose a definition of

marriage onto the laws of the various states by statute.

ADMINISTRATIVE IMPLICATIONS

The Public Employees Retirement Association of New Mexico notes that due to the community

property nature of retirement benefits under New Mexico law, each retirement act is replete with

references to a member’s marital status, spouse or former spouse. In certain instances, the PERA

Act requires written spousal consent prior to the payment of benefits. In other instances,

retirement benefits themselves are payable based on an individual’s status as a member’s

“surviving spouse or as a “former spouse" pursuant to a court order.

The current state of the law is unclear as to whether PERA is required to obtain spousal consent

and pay benefits to an individual based upon a same sex marriage which is valid and enforceable

in another jurisdiction. To date, PERA has not received any requests to pay benefits based upon

a same sex marriage.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Relates to HJR 2 Marriage Defined, CA; and, Duplicates HB 395

TECHNICAL ISSUES

The bill is unclear whether the term “jurisdiction" is intended to be limited to another state or

includes foreign countries.

Senate Bill 816/a SPAC – Page

3

OTHER SUBSTANTIVE ISSUES

The legalization of same sex-marriages across Canada has raised questions about U.S. law, due

to Canada's proximity to the U.S. and the fact that Canada has no citizenship or residency

requirement to receive a marriage certificate (unlike the Netherlands and Belgium). Canada and

the U.S. have a history of respecting marriages contracted in either country. At present, same-sex

marriages are recognized nationwide in the Netherlands, Belgium, Spain, Canada and South

Africa. Same-sex marriage conducted abroad is recognized in Israel.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The status quo will continue pending any future change mandated by the courts.

AHO/mt