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Thursday, January 6, 2011

New Mexico AG says state courts should recognize out-of-state same-sex marriages

By Nan Hunter -

New Mexico Attorney General Gary King has issued a formal opinion indicating that courts in that state, which has no prohibition of same-sex marriages but also has not adopted equal marriage laws, should recognize the marriages of gay couples that were performed in states that have authorized them. An AG Opinion is not binding on courts, but is often persuasive.
Most significantly, the opinion states that such marriages should be recognized not only for couples who marry legally in another state and later move to NM, but also for NM residents who travel out of state in order to secure a marriage that is not available locally. This latter practice - known as evasive marriages - are often less favored by law. However, the AGO notes that NM law supports non-recognition only of marriages that conflict with "an overriding public policy." In light of precedents establishing that neither the state's law against incestuous marriages nor the law against common law marriages was sufficient to dislodge the presumption that marriages would be recognized if they were legal where performed, the AGO concludes that same-sex marriages also should be recognized.
King's AGO replaces one coming to the opposite conclusion issued in 2004 by a previous AG.
UPDATE - Nancy Polikoff notes that King's position is opposed by the state's new governor. If the issue becomes a flash point in state politics, conservatives may press the state legislature to consider "junior DoMA" legislation that would establish formal state policy against recognition. Democrats are the majority party in both chambers of the New Mexico legislature, but I don't know how the votes would come out on a DoMA-style bill.

for more from Nan visit Hunter for Justice.


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