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.