TN 30 (03-20)

PR 05805.034 New Mexico

A. PR 20-018 New Mexico State Law – Validity of 2004 Sandoval County New Mexico Same-Sex Marriage Certificate

Date: February 13, 2020

1. Syllabus

The number holder (NH) and Claimant entered into a same-sex marriage in 2004 in Sandoval, New Mexico in 2004. The NH was domiciled in New Mexico when the claimant filed for spouses benefits; therefore, we look to the New Mexico law to determine if the claimant is entitled to spouses benefits. We believe the 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 in February 2004. We believe there is support for the agency to find that the Claimant is the NH’s spouse and that their marriage began in February 2004.

2. Question Presented

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.


Footnotes:

[1]

The Social Security Act provides for wife’s insurance benefits and husband’s insurance benefits and defines the term “spouse” as wife or husband. 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). We use the terms spouse and spouse’s benefits in this opinion.

[2]

The Claimant must satisfy other criteria to establish entitlement to spouse’s benefits that are outside the scope of this legal opinion request. See Act § 202(b), (c); 42 U.S.C. § 402(b), (c); 20 C.F.R. § 404.330(b)-(d).

[3]

In determining when spouse’s benefits begin, the regulations instruct that a claimant is entitled to spouse’s benefits beginning with the first month covered by his application in which he meets all the other requirements for entitlement under 20 C.F.R. § 404.330. 20 C.F.R. § 404.332(a). As you have only asked about whether the 2004 marriage is valid, we do not address other possible issues such as the earliest date of entitlement given the prior Title II retirement benefit applications and entitlement to such benefits of both the NH and the Claimant.

[4]

In Griego, the New Mexico Supreme Courtheld that the existing New Mexico marriage laws were unconstitutional. Griego, 316 P.3d at 872, 889. The New Mexico Supreme Court neither specified a particular date on which same-sex couples could begin receiving marriage licenses, nor struck down the existing marriage laws. Instead, in terms of a remedy, in this opinion, the New Mexico Supreme Court specifically ordered that whenever reference is made in New Mexico statutes, rules, regulations, or the common law to “marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which, in context, denotes a marital relationship, the same shall apply to same-sex couples who choose to marry,” and that “civil marriage” is to be construed to mean “the voluntary union of two persons to the exclusion of all others,” and that “all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.” Seeid. at 889.

[5]

The agency’s POMS at GN 00210.003(B) instructs that New Mexico first permitted same-sex marriage on August 21, 2013, which was the date that a New Mexico county clerk first issued a marriage license to a same-sex couple in the events that culminated in the Griego decision. See also Griego, 316 P.3d at 872 (noting in the procedural history that the Dona Ana County clerk voluntarily began issuing marriage licenses to same-sex couples on August 21, 2013). We now consider whether the Claimant’s marriage to the NH was validly celebrated in New Mexico on February XX, 2004. See POMS GN 00210.003(A)(1) (if the date of the marriage was not during a period when the state permitted same-sex marriage, request a legal opinion to determine whether a same-sex marriage was validly celebrated).

[6]

In response, on that same date of February XX, 2004, the New Mexico Attorney General Patricia Madrid, declining to issue a formal opinion, released an advisory letter stating that “no county clerk should issue a marriage license to same sex couples because those licenses would be invalid under current [New Mexico] law.” See N.M. Atty. Gen. Advisory Letter from Attorney General Patricia A. Madrid to State Senator Timothy Z. Jennings, 2004 WL 2019901 (N.M. A.G., Feb. 20, 2004). In response to this letter, the Sandoval County clerk stopped issuing marriage licenses to same-sex couples. On March 23, 2004, a New Mexico state court issued a temporary restraining order instructing the Sandoval County clerk to issue no further licenses to same-sex couples until the legality of the same-sex marriage issue could be resolved. See State of New Mexico, ex rel. Patricia A. Madrid and Sandoval Board of County Commissioners v. Victoria Dunlap, Sandoval County Clerk, No. D-1329-cv-2004 00292 (N.M. Dist. Ct. 13th Judicial District, Sandoval County). However, the case against the Attorney General was dismissed in January 2005. As noted, the legality of same-sex marriage in New Mexico was resolved in 2013 by the New Mexico Supreme Court’s Griego decision.

[7]

We were unable to obtain copies of the documents in this case, but located the court docket on-line through New Mexico Courts, Case Lookup. See https://caselookup.nmcourts.gov/caselookup/app (last visited Jan. 8, 2020). We also located articles written about the case. See Tom Sharpe, Judge: No easy way out for same-sex couple, Santa Fe, The New Mexican (Aug. 9, 2010), https://www.santafenewmexican.com/news/local_news/judge-no-easy-way-out-for-same-sex-couple/article_02b97933-9a0a-5699-aee4-772780d39e7f.html (last visited Jan. 8, 2020); Tom Sharpe, In earlier ruling, judge deemed couple’s union valid, Santa Fe, The New Mexican (Aug. 26, 2013),http://www.santafenewmexican.com/news/local_news/in-earlier-ruling-judge-deemed-couple-s-union-valid/article_0e5885f2-4ec5-52f1-b925-1f6b1432a718.html (last visited Jan. 6, 2020).

[8]

We were able to locate a copy of this letter. Articles written around this time explain the concerns about the status of these marriages and same-sex marriage generally in New Mexico at this time. See Dan Boyd and Rosalie Rayburn, County clerks want same-sex marriage ruling, Albuquerque Journal (Aug. 28, 2013),https://www.abqjournal.com/254807/county-clerks-want-samesex-marriage-ruling.html (last visited Jan. 6, 2020).


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http://policy.ssa.gov/poms.nsf/lnx/1505805034
PR 05805.034 - New Mexico - 03/11/2020
Batch run: 03/11/2020
Rev:03/11/2020