Opinion
               You asked whether a same-sex ceremonial marriage entered into between the number holder
                  D~ (NH) and the claimant A~Claimant) on February xx, 2004, in Sandoval County, New
                  Mexico is valid under New Mexico law for purposes of the Claimant’s application for
                  Title II spouse’s benefits on the NH’s record as the NH’s spouse.[1]
               Answer
               We believe that New Mexico courts would find that the Claimant’s February xx, 2004,
                  marriage to the NH is valid under New Mexico law. Accordingly, for purposes of determining
                  the earliest date her spouse’s benefits can begin, we believe there is support for
                  the agency to find that the Claimant is the NH’s spouse and that their marriage began
                  on February xx, 2004.
               
               Background
               We believe that New Mexico courts would find that the Claimant’s February xx,2004,
                  marriage to the NH is valid under New Mexico law. Accordingly, for purposes of determining
                  the earliest date her spouse’s benefits can begin, we believe there is support for
                  the agency to find that the Claimant is the NH’s spouse and that their marriage began
                  on February xx, 2004.
               
               You advised that the NH and the Claimant each receives Title II retirement benefits
                  based on their own record. In December 2015, the Claimant filed an application for
                  spouse’s benefits with the agency on the NH’s record.
               
               ANALYSIS
               A. Federal Law: “Spouse” under the Act for Spouse’s Insurance
                     Benefits
               Under Title II of the Act, a claimant may be entitled to spouse’s benefits if, among
                  other things,[2] he or she is the spouse of an insured individual entitled to old-age or disabled
                  insurance benefits and their marriage has lasted at least one year before the date
                  the claimant filed the application for benefits.[3] See Act §§ 202(b)(1), (c)(1), 216(a)(1), (b), (f); 42 U.S.C. §§ 402(b)(1), (c)(1),
                  416(a)(1), (b), (f); 20 C.F.R. § 404.330(a). A claimant meets the one-year marriage
                  duration requirement throughout the month in which the first anniversary of the marriage
                  occurs. See Act § 216(b)(2), (f)(2); 42 U.S.C. § 416(b)(2), (f)(2); 20 C.F.R. § 404.330(a)(1);
                  see also POMS RS 00202.001.
               
               The agency will find a claimant to be the insured individual’s spouse if the courts
                  of the state in which the insured individual was domiciled at the time the claimant
                  filed her application for benefits would find that the claimant was validly married
                  to the insured individual at the time the claimant filed her application for benefits,
                  of if, under application of that state’s intestate succession laws, the claimant would
                  be able to inherit a spouse’s share of the insured’s personal property. See Act §
                  216(h)(1)(A); 42 U.S.C. § 416(h)(1)(A);20 C.F.R. §§ 404.344, 404.345.
               
               Here, the NH was domiciled in New Mexico at the time the Claimant filed her application
                  for benefits. Therefore, we consider New Mexico law to determine whether the Claimant
                  is the NH’s spouse.
               
               B. State Law: Validly Married under New Mexico Law at the Time of the
                     Claimant’s Application
               1. New Mexico Law Regarding Same-Sex Marriage
               On December 19, 2013, the New Mexico Supreme Court legalized same-sex marriage in
                  New Mexico in its decision in Griego v. Oliver, 316 P.3d 865 (N.M. 2013).[4] Subsequently, on June 26, 2015, in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605
                  (2015), the U.S. Supreme Court held state laws invalid to the extent they excluded
                  same-sex couples from civil marriage on the same terms and conditions as opposite-sex
                  couples. Id. at 2605. Pursuant to Harper v. VirginiaDep’t of Taxation , 509 U.S. 86,
                  94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still
                  open on direct review and as to all events, regardless of whether such events predate
                  or postdate Obergefell . As a result, SSA will consider State-law same-sex marriage
                  bans, whether based on State constitutional or statutory provisions or case law void
                  and ineffective. SSA will apply the relevant law to the facts as usual to evaluate
                  marital status. [5] Thus, in applying New Mexico law and applying Obergefell retroactively, we consider
                  whether the Claimant entered into a valid same-sex ceremonial marriage with the NH
                  under New Mexico law.
               
               2. New Mexico Law and the Claimant’s Ceremonial Marriage to the NH on
                     February
                     XX
                     2004, in Sandoval County, New Mexico 
               On February xx, 2004, the Sandoval County, New Mexico clerk issued marriage licenses
                  to 66 same-sex couples, including to the NH and the Claimant. [6] It is our understanding that 64 same-sex couples, including the NH and the Claimant,
                  returned their licenses and certificates for recording in the county records following
                  a solemnized marriage ceremony in compliance with New Mexico marriage laws. In support
                  of her application for spouse’s benefits, the Claimant presented the agency with a
                  New Mexico marriage license and certificate showing that on February xx, 2004, a minister
                  married the Claimant and the NH in a solemnized marriage ceremony before witnesses
                  in Sandoval County, New Mexico, and that the clerk recorded the completed marriage
                  license and certificate in the County’s marriage record books. These marriage documents
                  establish that their ceremonial marriage complies with New Mexico marriage laws. See
                  N.M. Stat. Ann. § 40-1-1 (marriage is a civil contract), § 40-1-2 (an authorized person,
                  such as an ordained clergy member, must solemnize a marriage; solemnize means to join
                  in marriage before witnesses by means of a ceremony), § 40-1-10 (couples wishing to
                  marry “shall first obtain a license from a county clerk of this state and following
                  a ceremony conducted in this state file the license for recording in the county issuing
                  the license”), § 40-1-14 (“persons authorized to solemnize marriage shall require
                  the parties contemplating marriage to produce a license signed and sealed by the county
                  clerk issuing the license.”), § 40-1-15 (the person performing the ceremony has “the
                  duty . . . to certify the marriage to the county clerk within ninety days from the
                  date of the marriage ceremony,” and the county clerk shall file the certificate of
                  marriage and record it as a permanent record in the county records).
               
               As these February 2004 same-sex ceremonial marriages preceded both the Griego and
                  Obergefell decisions, we note that the issue of their validity had been previously
                  raised in at least one state court case and with the New Mexico Attorney General.
                  In 2010 the issue of the validity of the 2004 Sandoval County marriages arose in a
                  divorce case filed in district court in Santa Fe County, New Mexico involving one
                  of the Sandoval County same-sex couples who had received a marriage license and married
                  on Februaryxx, 2004. SeeCarrejo v. Haught, No. D-0101-DM-2009-0504 (N.M. Dist. Court
                  1st Judicial District, Santa Fe County).[[7] ] One of the party’s to the marriage filed a motion to dismiss asserting that there
                  could be no divorce because their marriage had been invalid from the beginning arguing
                  that New Mexico did not authorize same-sex marriage. The court denied the motion to
                  dismiss. In doing so, the court stated that the county clerk may have been negligent
                  or mistaken in issuing the same-sex marriage licenses, but that the licenses were
                  “not void from the inception, but merely voidable.” In February 2012, the court entered
                  a final decree of dissolution of marriage. Thus, even prior to the Griego and Obergefell
                  decisions,this court recognized the validity of the February 2004 same-sex marriage
                  and granted their divorce.
               
               In August 2013, the New Mexico Attorney General wrote a letter opining that these
                  February xx, 2004, Sandoval County marriages were legal and valid.[[8] ] This letter explains that in 2013, the Sandoval County clerk discovered that prior
                  county clerks had labeled some of the 2004 same-sex marriage licenses and certificates
                  recorded in the clerk’s office as “void” and “illegal.” The Sandoval County clerk
                  sought advice from New Mexico Attorney General Gary King on their legal status. On
                  August 28, 2013, Attorney General King issued a non-binding letter to the Sandoval
                  County clerk advising that the same-sex marriage licenses issued by the Sandoval County
                  clerk in 2004 were “presumptively valid” until a court declared them to be void. Attorney
                  General King stated that the county clerk had the authority and legal duty to issue
                  marriage licenses, and further, that the county clerk did not have authority under
                  New Mexico law to invalidate marriages as only a court of competent jurisdiction could
                  do so. See N.M. Stat. Ann. §§ 40-1-10, 40-1-19(A). Thus, even prior to the Griego
                  and Obergefell decisions,the Attorney General concluded that the 2004 same-sex marriage
                  licenses (and resulting marriages performed pursuant to such licenses) were valid
                  until a court declared otherwise. We are unaware of any court order declaring any
                  of these 2004 marriages to be void, including the Claimant’s marriage to the NH. The
                  Attorney General’s 2013 letter is consistent with the court’s rationale in the Carrejo
                  same-sex divorce case and supports finding that the Claimant’s 2004 marriage to the
                  NH remains legal and valid under New Mexico law. See U.S. v. Reese, 326 P.3d 454,
                  462 (N.M. 2014) (“recogniz[ing] that Attorney General opinions and advisory letters
                  do not have the force of law,” however, they can “persuasively establish what New
                  Mexico has consistently understood the law to be”); Hanagan v. Board of County Commissioners
                  of Lea County, 325 P.2d 282, 284 (N.M. 1958) (Attorney General opinions are “entitled
                  to great weight”).
               
               Finally, we note that in the Griego decision legalizing same-sex marriage, the New
                  Mexico Supreme Court did not give an effective date for the legalization of same-sex
                  marriage and did not address the validity of these 66 same-sex marriage licenses issued
                  in 2004. However, a number of the pleadings filed in the Griego case discussed and
                  acknowledged the existence of these 2004 Sandoval County same-sex marriages in recounting
                  the history of same-sex marriage in the State.
               
               In summary, in light of the above, we believe that if a challenge were brought in
                  a New Mexico court today regarding the validity of one of the 2004 Sandoval County
                  same-sex marriages, a New Mexico court would uphold the marriage, if it was otherwise
                  in compliance with the law. Thus, we believe New Mexico courts would find that under
                  New Mexico law and as shown by a copy of a recorded marriage license and certificate
                  reflecting a properly solemnized marriage ceremony, the Claimant was validly married
                  to the NH on February XX, 2004.
               
               Conclusion
               We believe that New Mexico courts would find that the Claimant’s February xx, 2004,
                  marriage to the NH is valid under New Mexico law. Accordingly, consistent with both
                  New Mexico law and Harper, requiring SSA to give Obergefell full retroactive effect,
                  for purposes of determining the earliest date her spouse’s benefits can begin, we
                  believe there is support for the agency to find that the Claimant is the NH’s spouse
                  and that their marriage began on February XX, 2004.