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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

01/18/08

HJR 3

SHORT TITLE Marriage Defined, CA

SB

ANALYST Escudero

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates To: House Bill 47, House Bill 9, House Bill 28.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General Office (AGO)

Department of Labor (DOL)

SUMMARY

Synopsis of Bill

This House Joint Resolution proposing an Amendment to Article 20 of The Constitution of New

Mexico to define marriage as between one man and one woman.

Be it resolved by the Legislature of The State of New Mexico.

Section 1. It is proposed to amend Article 20 of the constitution of New Mexico by adding a

new section to read:

"Marriage in this state shall consist only of the union of one man and one woman."

Section 2. The amendment proposed by this resolution shall be submitted to the people for

approval or rejection at the next general election or at any special election prior to that date that

may be called for that purpose.

House Joint Resolution 3 – Page

2

SIGNIFICANT ISSUES

According to the AGO this analysis is neither a formal Attorney General’s Opinion nor an

Attorney General’s Advisory Opinion letter. This is a staff analysis in response to the agency’s,

committee’s or legislator’s request.

•

Although New Mexico does not have a law specifically providing that marriage must be

between persons of different genders, or laws specifically prohibiting marriages between

persons of the same gender, provisions governing marriage licenses in state law refer to a

“bride" and “groom", and require a “male" and “female" applicant. See Sections 40-1-17,

40-1-18 1978. Other provisions in state law refer to “husband" and “wife". See Sections

40-2-1 et seq.; 40-3-1 et seq. This joint resolution would specifically define marriage as

only a union between a man and a woman, which would be consistent with existing state

law.

•

The Legislature is also considering legislation enacting laws affording “domestic

partners" substantially the same rights as those afforded married persons. This joint

resolution may preclude or conflict with the enactment of such laws. Even though it does

not specifically ban domestic partnerships, civil unions, etc. between persons of the same

gender, which would not be considered marriages, the joint resolution states that marriage

shall consist only of the union of one man and woman. That language might be

interpreted as intending to prevent the legislature from granting marital rights to couples

of the same gender.

In February 2004 the former New Mexico Attorney General issued an advisory opinion in which

she ruled that marriage in New Mexico is limited to a man and a woman. This opinion was

issued in response to the Sandoval County Clerk issuing marriage licenses to persons of the same

sex. A District Court Judge issued a Temporary Restraining Order prohibiting the Clerk from

issuing such licenses in March, 2004. The Clerk then filed a petition in the New Mexico

Supreme Court against the Attorney General and the District Judge who issued the restraining

order, asking the Supreme Court to require that those officials allow her to issue marriage

licenses “without interference or discrimination based on sex, sexual orientation, or gender".

Dunlap v. Madrid and McDonald, No.28, 730. On July 8, 2004 the Supreme Court denied the

Clerk’s petition, effectively letting stand the opinion of the Attorney General that “same-sex"

marriages are not authorized by New Mexico state law.

The lack of a specific law defining marriage based upon gender has lead the State of

Massachusetts to conclude that New Mexico residents of the same sex may obtain marriage

licenses in that state.

http://jurist.law.pitt.edu/paperchase/2007/07/massachusetts-oks-same-sex-

marriage.php

;

http://www.mass.gov/Eeohhs2/docs/dph/vital_records/impediment.pdf

.

On September 21, 1996, President Bill Clinton signed the federal “Defense of Marriage Act" (1

U.S.C. sec. 7; 28 U.S.C. 1738C) which prohibited the federal government from recognizing

same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of

the states. That Act also defined “marriage" for federal purposes as a legal union between one

man and one woman as husband and wife, and the word ‘spouse’ as a person of the opposite sex

who is a husband or a wife.

House Joint Resolution 3 – Page

3

The Act also provided that states, territories, possessions, or Indian Tribes need not recognize a

marriage between persons of the same sex, even if the marriage was concluded or recognized in

another jurisdiction. Although not specifically stated, this joint resolution might have the effect

of precluding New Mexico from recognizing marriages between persons of the same gender

which are legal in other states, in spite of NMSA Section 40-1-4 (1978) which currently

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." It remains an open question in New Mexico as to whether marriages

between persons of the same gender which are legal in the jurisdiction in which they are

performed (e.g. Massachusetts) are currently recognized in New Mexico.

Even if the resolution is approved by the voters, it would be uncertain whether its provision is

“self-executing" (effective without enabling legislation), or whether it is merely a declaration of

principle or policy requiring legislation in order to become effective as state law, or if not “self-

executing" whether existing state law is sufficient to give it effect. See Jaramillo v. City of

Albuquerque, 64 N.M.427 (1958).

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

According to the AGO, House Bill 47 would enact a similar provision into state statutes.

House Bill 9 and House Bill 28 both enact a “Domestic Partner Rights and Responsibilities Act"

which would confer substantially the same rights under state law on “domestic partners" as are

available to married persons, regardless of gender.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The voters will not be asked to decide whether the New Mexico Constitution should be amended

to provide that “Marriage in this state shall consist only of the union of one man and one

woman."

PME/bb