New Mexico Attorney General Gary K. King issued a formal opinion (No. 11-01) on January 4 taking the position that under principles of comity New Mexico would recognize same-sex marriages validly performed elsewhere, even though the state's laws do not provide for same-sex marriages to be contracted within the state. King's formal opinion was co-signed by Assistant Attorney General Elaine P. Lujan, who is presumably the principal author of the document. The opinion was requested by New Mexico State Representative Al Park.
King hedged his bets, however, by stating in his "Conclusion" that "we cannot predict how a New Mexico court would rule on this issue," but that this was the A.G.'s opinion "after review of the law in this area." A key element of that law is actually the absence of law – unlike all but a handful of states, New Mexico has never adopted a statute that specifically prohibits the recognition of same-sex marriages.
After observing that under the federal Defense of Marriage Act, New Mexico would not be required to recognize same-sex marriages performed elsewhere if it did not want to, King's opinion went directly to the "principle of comity," observing, "Ordinarily, as a matter of comity, a marriage valid when and where celebrated is valid in New Mexico," a proposition supported by a 1990 New Mexico Supreme Court ruling, Leszinske v. Poole, 110 N.M. 663.
Indeed, King points out, New Mexico has actually codified this general rule in a statute, Section 40-1-4, which provides that "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."
King also pointed out that there is a "general exception" to this recognition rule, in cases where a marriage is "contrary to a state's public policy," and said that New Mexico would recognize a "valid out-of-state marriage pursuant to Section 40-1-4 as long as the marriage does not offend a sufficiently strong or overriding public policy." King rejected the idea that the failure of New Mexico to affirmatively authorize the performance of same-sex marriages would qualify as such a state policy, noting that under the principles of comity New Mexico has recognized a variety of marriages performed elsewhere that could not have been performed within the state, such as, for example, an uncle-niece marriage or a "common law" marriage.
King referred to the recent opinion issued by the Maryland Attorney General, reaching a similar conclusion, noting that the lack of a statute expressly forbidding such recognition suggested the lack of a strong public policy basis to deny recognition. "The federal DOMA authorizes states to prohibit the recognition of out-of-state, same-sex marriages," wrote King. "While many states have enacted such a prohibition, New Mexico has not. Without an explicit statute, the principle of comity, codified in New Mexico in Section 40-1-4, would likely guide the analysis in this area."
He also discounted the weight of an "advisory letter" that had been sent by an earlier attorney general to a state senator seeking clarification of the issue in 2004, at time when the same-sex marriage issue had come to a boil in many states as a result of the Massachusetts marriage decision going into effect and the brief "outbreak" of same-sex marriage licenses being issue by local authorities without state authorization in California, Oregon, New York and New Mexico. "We do not believe that the reasoning in the advisory letter is enough to establish a strong or overriding public policy against same-sex marriages in New Mexico," wrote King, concluding: "Without an identifiable adverse public policy in this area, we conclude that a court addressing the issue would likely hold, pursuant to Section 40-1-4, that a valid same-sex marriage from another jurisdiction is valid in New Mexico."