Proponents of this bill want to convince you that fairness and justice require this state to have domestic partnerships and traditional marriage.  But the truth is, the one completely undermines the other, and future generations of this state’s citizens will be the losers.

Marriage exists because the sexual union of a man and a woman results in children.  For centuries, community leaders like you in a diversity of cultures considered it a good thing if the man and woman who made the baby, also worked together to raise the baby.

Marriage is a social institution that provides a vital service to New Mexico and this country. Marriage was not created by government, but it is traditionally recognized by government because it provides something that the government desperately needs and cannot produce for itself—upstanding citizens who will contribute to the strength of this state and this country.

Rather than acknowledge the social good that marriage is, this bill undermines it.  It is unclear that H.B. 9 will reinforce or strengthen heterosexual relationships, but what is clear is that married mothers and fathers are key to the needs of children, and to the future of this country.

Furthermore, there is no guarantee that H.B. 9 will satisfy homosexuals seeking legal recognition for their relationships.  In fact, we have every reason to believe that it will not be enough. Activists in New Jersey and Vermont have declared those states’ civil unions to be insufficient and gay marriage is being pursued.

H.B. 9 may seem like a minor tweak to state policy in the interest of equality, but it is ultimately a radical redefinition of vital family policy.   And while the bill says that the domestic partnership shall not be construed as marriage, please tell me what is created when every right of marriage is given under a different name.

So what H.B. 9 really proposes is one step toward the redefinition of marriage in this state, and its proponents want marriage to do something for which it was not intended. Marriage is not a legal vehicle for equality; it’s a social institution with children at its heart.

Proponents are pretending that this bill is about something else, but the ramifications of H.B. 9’s passage—especially for children--are unknown.

Having said this, I would like to talk about the unintended consequences of H.B. 9 for children, for the religious freedoms in this state, and finally, the unintended consequences for New Mexico businesses.

To begin, I will outline just one of the unintended consequences of H.B. 9 for children. New  Mexico's marriage and paternity laws currently protect children, but H.B. 9 leaves a class of children unprotected. If H.B. 9 is passed, any child born to a woman in a heterosexual domestic partnership will not be protected by the usual presumption of the father's paternity granted in New Mexico's version of the Uniform Parentage Act, Section 40-11-5, NMSA.  (According to that provision, a presumption of paternity attaches to any man who has either attempted to marry the child's mother before birth, was indeed married to the child's mother at the time of birth, or married or attempted to marry the child's mother after birth.)

Paternity laws protect children at two critically important junctures: (1) upon dissolution of the marriage of their parents; and (2) upon the death of the father intestate (i.e. without a will) and without any other legal document identifying the children as his. In those situations, New Mexico law mandates the financial provision for the children by the presumed father who, for one reason or another, has never officially acknowledged his paternity.

H.B. 9's "dissolution" language does not address this shortcoming in divorce situations, and does not even address the intestacy problem. Although H.B. 9 states that in domestic partnership dissolution the courts will use the same procedures as for the dissolution of marriage, it says nothing about the substantive law of marriage dissolution, including child support. At any rate, it is clear that H.B. 9 does not amend the paternity statute in any way, thus leaving children vulnerable.

And with the hundreds of statutes, regulations and policies amended by H.B. 9, how do we know for sure there aren't more areas where children's protection has been eviscerated?

H.B. 9 discriminates against religious organizations and individuals
Another unintended consequence of this bill is its discrimination against religious organizations and individuals. Section 6 of the Bill purports to protect "religious bodies" and their "religious practices" from "interference" or "regulation" by the operation of this Bill, but it does not accomplish that goal.  Furthermore, it completely ignores the religious beliefs of individuals, and tramples individual religious rights as well.

First, Section 6 does not define the terms "religious body," or "religious practice," neither does it define "interfere with" nor "regulate." No one can predict, therefore, how this so-called "religious freedom" section will be interpreted when it comes to the activities of churches and other faith-based organizations.

For example, are faith-based marriage counseling organizations, not affiliated with any "religious body," guilty of "discrimination" under Section 3B of the bill if they require their counselors to be married? Are they guilty if they refuse to provide counseling to domestic partners who by definition are not married in conformance with whatever faith tradition is the basis for the counseling organization? It would seem so, and therefore H.B. 9 would force faith-based marriage counseling services to make a choice between two equally objectionable outcomes.  They must either compromise their religious beliefs about marriage in order to stay in business, or stand upon their religious conviction and be forced to close their doors.

Second, H.B. 9 would force ordained clergy who are unaffiliated with a church to make a similar Hobson's choice:  perform same-sex "commitment ceremonies" in violation of their sincerely held religious beliefs, or be found guilty of "discrimination." Since Section 6 applies only to religious bodies, an unaffiliated clergyman has no religious freedom protection.

Recently, the New Mexico Human Rights Commission has shown a predilection for ignoring individual religious convictions in its pursuit of a Christian photographer who, on religious grounds, turned down the business of a same-sex couple planning a "commitment ceremony."

It's a reasonable assumption that H.B. 9 will be interpreted the same way, and that those clergy must either perform same-sex commitment ceremonies or be brought before the same Commission.

It is also questionable whether the proponents of this bill have given any thought to the impact of H.B. 9 on New Mexico businesses.  For example, New Mexico licenses professionals who engage in marriage and family therapy. (Section 61-9A-12, NMSA.) These professionals must have the requisite training in marriage counseling to qualify for licensure, so the passage of H.B. 9 raises some questions.  Will these professionals be required, under pain of the "discrimination" penalties of Section 3B, to provide counseling for domestic partners, even though such professionals may have no education or training in such relationships? Will there be additional training or education required? Will there be a waiver? What if a licensed marriage and family therapist primarily uses religiously based treatment and counseling practices, which would be totally inappropriate for use with a same-sex domestic partnership? How many marriage counselors will lose their livelihood as a direct result of H.B. 9?

We've already seen the impact of New Mexico's Human Rights Act on wedding photographers. With H.B. 9's discrimination provisions, what other marriage-related businesses and professions will be affected?

Conclusion: H.B. 9 produces massive changes in NM law with a host of unintended consequences and unforeseen economic costs

Finally, a simple Lexis database search of the New Mexico statutes and administrative code for all references to "spouse," "widow" or "widower"—the terms used in H.B. 9, reveals over 700 instances where the laws and regulations of this state will be changed according to their redefinition in H.B. 9. And that research result doesn’t take into account the other areas of New Mexico law to which H.B. 9 also mandates changes: court rules, policies, common law or any other source of civil or criminal law. Has anyone, indeed could anyone possibly, look at the wide-ranging impact of H.B. 9 on the myriad of state laws, rules, regulations, policies and common law and assure New Mexicans that there will be no adverse religious, economic, social or family consequences in addition to the ones already highlighted in this testimony?

How will adoption laws that speak of "marriage" but make no mention of "spouses," such as the step-parent adoption law, be interpreted in light of the realities of domestic partnerships?

How will faith-based and secular marriage therapists be treated under the new law?

How are children of domestic partnerships to be treated in dissolution and inheritance cases where a father's paternity needs to be presumed, but can't be by the very terms of the statute?

Will unaffiliated clergy be dragged before the Human Rights Commission or the courts for refusing to perform a same-sex "commitment ceremony?"

One more note before I close.  Proponents of this bill rely heavily on the argument that there is a problem with hospital visitation and medical decision-making rights for unmarried couples. This is a straw man argument.  Since 1997, the Uniform Health-Care Decisions Act requires hospitals to recognize visitation and surrogate decision-making designations contained in advanced health-care directives. In the absence of such a directive, the statute requires hospitals to recognize "an individual in a long-term relationship with the patient…with a commitment similar to a spouse." This provision is especially suitable for meeting all hospital-related needs of unmarried couples, whether heterosexual or same-sex.  If New Mexico hospitals are not complying with this law, and there is no evidence that I'm aware of that they are not, then the solution is in requiring compliance with the existing law, not passing a new one that creates more problems than it supposedly solves.