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 V~, Canada, on July XX, 2011. The certificate
also identifies the registration date of their marriage as August XX, 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 XX, 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
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.
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);
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.”
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 XX, 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 V~, British Columbia,
Canada, was a valid same-sex marriage under Canadian law on July XX, 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
V~, 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