TN 1 (09-14)
PR 05825.034 New Mexico
PR 14-126 New Mexico State Law – Recognition of Canadian Same-Sex Marriage (NH: C~; SSN ~) – REPLY
DATE: June 26, 2014
Since New Mexico, where the number holder and claimant are domiciled, recognizes valid same-sex marriages from other jurisdictions (states and countries), and since August 21, 2013, permits same-sex marriages within New Mexico.
You have requested an opinion on whether New Mexico law would recognize a Canadian ceremonial same-sex marriage between C~ (the number holder) and S~. Your request indicates that S~ has filed a claim for auxiliary spousal benefits under Title II of the Social Security Act (Act) on the number holder’s account.
We believe that S~ and the number holder entered into a valid ceremonial same-sex marriage in Canada on July XX, 2011. New Mexico, where the number holder and S~ are domiciled, recognizes valid same-sex marriages from other jurisdictions (states and countries), and since August 21, 2013, permits same-sex marriages within New Mexico. See POMS GN 00210.003; see also Rose Griego, et al. v. Maggie Toulouse Oliver, et al., and State of New Mexico, ex rel., New Mexico Association of Counties, et al. v. Honorable Alan M. Malott, 316 P.3d 865 (N.M. 2013). As such, we believe that New Mexico would recognize the number holder and S~’s same-sex Canadian marriage as a valid out-of-state same-sex marriage. Thus, the agency may find S~ entitled to Title II auxiliary benefits as the number holder’s spouse if she meets the additional requirements for entitlement to those benefits not addressed in this opinion.
As we understand the facts, S~ and the number holder entered into a civil union in Vermont in 2000. On July XX, 2011, they also entered into a ceremonial marriage in Canada, which is evidenced by a certified copy of their British Columbia Certificate of Marriage. The Canadian marriage certificate identifies both of their sexes as female, and shows that their marriage took place in Vancouver, Canada, on July 28, 2011. The certificate also identifies the registration date of their marriage as August 6, 2011.
S~ and the number holder are both domiciled in New Mexico, and are entitled to Title II retirement benefits since June 1996 and June 2008 respectively. On August 12, 2013, S~ filed her claim for auxiliary spousal benefits under Title II of the Act on the number holder’s account. S~’s claim is currently pending before the agency and is the subject of this request.
A claimant is entitled to spousal benefits under Title II of the Act if, among other things, she is the spouse of an insured individual who is entitled to old-age or disability benefits. See 42 U.S.C. §§ 402(b), 416(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Here, the number holder was domiciled in New Mexico at the time S~ applied for benefits. We therefore look to New Mexico law to determine whether S~ has been in a valid marital relationship with the number holder. See POMS GN 00210.006(B)(1). Our specific inquiry focuses on whether New Mexico law will recognize the Canadian same-sex marriage between S~ and the number holder as a valid marriage.
A. New Mexico Law Will Recognize a Foreign Same-Sex Marriage if it is Valid under the Law of the Country Where it was Celebrated or Contracted
Generally, New Mexico courts have followed the principle that a marriage valid when and where celebrated is valid anywhere. See Ferret v. Ferret, 237 P.2d 59, (N.M. 1951); Leszinske v. Poole, 798 P.2d 1049, 1053 (N.M. App. 1990). New Mexico statutes have long codified this principle. See N.M. Stat. Ann. § 40-1-4 (initially enacted in 1862). Specifically, section 40-1-4 of the New Mexico marriage statutes provides:
All marriages celebrated beyond the limits of the 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.
Id. We note that this statute refers to “laws of the country” where celebrated, indicating that it is intended to apply to foreign marriages, such as the one at issue here. New Mexico courts have applied this statute in determining whether to recognize out-of-state marriages from other U.S. states, as well as marriages performed in foreign countries. See e.g. Ferret v. Ferret, 237 P.2d 594, 578-579 (N.M. 1951) (applying the doctrine of comity in considering whether New Mexico would find a valid marriage entered into in Spain); Gallegos v. Wilkerson, 445 P.2d 970 (N.M. 1968) (interpreting the predecessor to section 40-1-4 and upholding a Texas common law marriage); Dion v. Rieser, 285 P.3d 678 (N.M. App. 2012) (considering section 40-1-4 and whether New Mexico should recognize an Australian judgment declaring an individual to be a de facto spouse); Leszenski v. Poole, 798 P.2d 1049 (N.M. App. 1990) (considering whether New Mexico would recognize a Costa Rican marriage).
Although neither New Mexico’s marriage statutes, nor its case law, specifically address the question of whether New Mexico will recognize a foreign same-sex marriage, New Mexico’s Attorney General issued an opinion in January 4, 2011, concluding that New Mexico law recognizes such an out-of-state marriage if it is valid under the law of the country where it is consummated. See N.M. Atty. Gen. Op. No. 11-01, 2011 WL 111243, at *3 (N.M. A.G. Jan. 4, 2011). Moreover, the New Mexico Supreme Court’s December 2013 decision holding that same-sex marriage is legal in the State clarifies even further that New Mexico will recognize valid out-of-state same-sex marriages. See Griego, 316 P.3d 865. In Griego, 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.” See Griego, 316 P.3d at 889. Given this specific order, section 40-1-4 of the New Mexico marriage statutes must be read to recognize a valid foreign marriage between persons of the same sex if the marriage is valid under the law of the country where it is celebrated or contracted. See N.M. Stat. Ann. § 40-1-4. Given the date of the New Mexico Attorney General’s opinion and the recent New Mexico Supreme Court’s Griego decision, we conclude that New Mexico has recognized valid foreign same-sex marriages at least as of January 4, 2011. As such, New Mexico will recognize the same-sex marriage between S~ and the number holder if it was a valid marriage under Canadian law on July 28, 2011, the day it was contracted or celebrated.
B. S~’s Same-Sex Marriage to the Number Holder Was a Valid Marriage under Canadian Law on the Day it was Celebrated or Contracted
We conclude that S~’s same-sex marriage to the number holder in Vancouver, British Columbia, Canada, was a valid same-sex marriage under Canadian law on July 28, 2011, the day it was contracted or celebrated. In a recent report provided to the agency on Canadian law on same-sex marriage, the Law Library of Congress stated that same-sex marriage became legal in Canada when the Canadian Civil Marriage Act received Royal Assent and went into force on July 20, 2005. See Law Library of Congress, Report for US Social Security Administration, Canada: Legal Recognition of Same-Sex Marriage, LL File No. 2014-010685 (May 2014) (attached). Section 2 of the Canadian Civil Marriage Act states that “[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” Id., citing Civil Marriage Act, S.C. 2005, c. 3, § 2. The Act goes on to state that “a marriage is not void or voidable by reason only that the spouses are of the same sex.” Id., citing Civil Marriage Act, S.C. 2005, c. 3, § 4. Thus, same-sex marriage became legal in Canada at the federal level at least as of July 20, 2005.
However, even before it became legal at the federal level, nine out of thirteen Canadian provinces and territories had struck down the traditional common law definition of marriage as a violation of equality rights through a series of provincial level court decisions. See Law Library of Congress, Report for US Social Security Administration, Canada: Legal Recognition of Same-Sex Marriage, LL File No. 2014-010685 (May 2014). Of relevance here, on May 1, 2003, the British Columbia Court of Appeal recognized same-sex marriage but suspended its decision until “July 12, 2004, solely to give the federal and provincial governments time to review and revise legislation to accord with this decision.” Id., citing Barbeau v. British Columbia (Attorney General),  B.C.C.A, 251, para. 7. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Id., citing Barbeau v. British Columbia (Attorney General),  B.C.C.A, 406. Thus, same-sex marriage became legal in British Columbia at least as of July 8, 2003.
Finally, there appears to be no Canadian residency requirement to be married in Canada. See Law Library of Congress, Report for US Social Security Administration, Canada: Legal Recognition of Same-Sex Marriage, LL File No. 2014-010685 (May 2014). The Canadian Civil Marriage Act specifically recognizes civil marriages of non-resident persons:
A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.
Id., citing Civil Marriage Act, § 5(1).
In sum, same-sex marriage was legal both in British Columbia and at the federal level in Canada when S~ and the number-holder celebrated or contracted their marriage in Vancouver, British Columbia on July XX, 2011. Further, Canadian law did not require them to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that the same-sex marriage was a valid marriage under Canadian law on the day it was celebrated or contracted.
It is our opinion that S~ and the number holder have a valid same-sex marriage under Canadian law, and that New Mexico would recognize this foreign same-sex marriage as valid. We therefore believe that the agency may find S~ to be the number holder’s spouse for purposes of determining her entitlement to spousal benefits on the number holder’s account.
Regional Chief Counsel
Assistant Regional Counsel
The Dallas Regional Office submitted this legal opinion request pursuant to Program Operations Manual System (POMS) GN 00210.006 Same-Sex Marriages Celebrated in Foreign Jurisdictions, which explains that because of the United States v. Windsor, 133 S.Ct. 2675 (2013) decision, the Social Security Administration (agency) is now able to process some claims and appeals involving foreign same-sex marriages and sets out the policy on determining the need for a legal opinion on foreign same-sex marriage. See POMS GN 00210.006(A); see also POMS GN 00210.001 (noting that because of the Windsor decision, the agency is no longer prohibited from recognizes same-sex marriages for purposes of determining benefits, and