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Cases in Context

A look at NM cases with information related to the case and what was happening at that time.

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People and Organizations

Newspaper photo of Judge Irwin S. Moise. Albuquerque Journal February 6th, 1963.

Irwin Moise

New Mexico Supreme Court Judge, Irwin Moise was born in Santa Rosa, New Mexico, on Dec. 1, 1906.  He received his law degree from the University of Michigan in 1928 and that year was admitted to the Bar in New Mexico. "Justice Irwin S. Moise served as a district judge in the 4th Judicial District from 1937-42, then joined the Navy during World War II. After his discharge on Dec. 7, 1945, Moise opened a law office in Albuquerque, where he practiced until being appointed to the Supreme Court in 1959." (Obituary Clovis News Journal, October 14, 1984 Pg. 49). He died in 1977 in Albuquerque.

 

 

 

 

 

Amarante Gallegos (AKA Burt Holmes)

Born in 1899 in Colorado, he agreed to marry Rosana in 1922, but married Ursilita Bedan in 1924. They had one child. In 1924 Amarante and Rosana moved to New Mexico and he changed his name to Burt Holmes.  In the 1930 census he was described as married to Bertha and working as a mechanic in a garage.  Amarante and Ursilita were divorced March 22, 1937. For reasons not fully explained, Amarante changed his name to Burt Holmes after moving to New Mexico. The 1950 census lists his occupation as Snapper Foreman and married to Martha. He died in 1964.

March 6th. 1967 legal notice of Rosana Gallegos as the administratrix of Amarante's estate.


Rosana (Rosie) Overstreet Gallegos (AKA Bertha Mayers)


Rosana was born December 21,1905 and met Amarante in San Luis, Colorado. They agreed to marry in 1922 and would have three children while living in New Mexico. The 1930 census describers her as a married homemaker whose first marriage occurred when she was 18. At the time of the census, they were living in Las Cruces. For reasons not fully explained, Rosana changed her name to Bertha Mayers when they moved to New Mexico. In 1935 she took the children and moved to Albuquerque and was still living there with her children in 1940.  She was listed as married but Burt was not listed on the census form. In 1942 Burt and Bertha had a marriage ceremony in New Mexico.

 

 

 

 

 

Legal notice from September 4th, 1967 listing Marth Holmes as the administratrix of Amarante's estate.

Martha Othelia Holmes Wilkerson
 

Born 23 Dec 1915, in Shawnee, Oklahoma. She and Burt engaged in a common law marriage in Texas 1937. According to her obituary, she and Burt worked on the west coast during WWII. Martha was a welder and later worked at White Sands Missile range. The 1950 census lists her and Burt living together as a married couple in Organ, New Mexico. She married a man named Woolley in 1970. She died 21 Apr 2004, in Carlsbad New Mexico.

Obituary, Martha Woolley, Carlsbad Current-Argus, April 24th, 2004.

 

What is marriage?

According to New Mexico (NMSA 40-1-1) 

"Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential."


"The essence of the contract of marriage is the consent of the parties, as in the case of any other contract; and, whenever there is present. perfect consent to be husband and wife, the contract of marriage is completed."- Justice Mitchell, Hulett V. Carey, Minnesota Supreme Court, 1896. 


A marriage “allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.” (Justice Kennedy, Obergefell v. Hodges, 576 U.S. (2015))

State Requirements

In New Mexico: Ch. 40, art. 1 NMSA 1978

  • A license from the County Clerk from the county where the applicants reside (L. 1915, Chap. 31). The  license is filled out and returned for the County Clerk's seal.
     
  • Payment to the County Clerk ($1.00 in 1915, current price $25.00).
  • Officiant: A person who is an ordained member of the clergy or who is an authorized representative of a federally recognized Indian nation, tribe or pueblo may solemnize the contract of marriage without regard to sect or rites and customs the person may practice.
     
  • Both parties or a proxy (some to stand in for one of the people being married).

Who can marry?

Age requirement (varies by state)

In New Mexico: 40-1-6. Restrictions on marriage of minors.

A.  The county clerk shall not issue a marriage license to an unemancipated person sixteen or seventeen years of age, and no person authorized by the laws of this state to solemnize marriages shall knowingly unite in marriage any person sixteen or seventeen years of age, unless the minor first receives the written consent of each of the minor's living parents as shown on the minor's certificate of birth, or the district court has authorized the marriage of such person upon request of a parent or legal guardian of the person for good cause shown, and a certified copy of the judicial authorization is filed with the county clerk.

 

People of different races
The 1967 case, Loving v. Virginia overruled state laws preventing individuals of different races to marry. These were called anti-miscegenation laws. Here are some examples of laws from Loving v. Virginia: “Banished” for Love, Posted by: Francisco Macías

People who are the same gender
"On May 15, 2008 the California Supreme Court ruled that provisions in the state’s marriage statutes disallowing same-sex marriages violate the California Constitution...The court ruled that the statutory language “limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.” (In re Marriage Cases, No. S147999 (Cal. May 15, 2008), available at http://www.courtinfo.ca.gov/opinions/documents/S147999.Pposter states Stamp out syphilis every baby is entitled to be born healthyBlood test & examination should be made before marriage by your doctor or Bureau of Social Hygiene Clinic, 51 Stuyvesant Place, Staten Island.DF)."

People who pass a blood test

"Blood tests required by statutes vary from state to state, but the most commonly required ones are for syphilis, sickle cell anemia, infectious or genetic diseases, rh compatibility, or tuberculosis." (Greenfield, 7)

New Mexico eliminated the requirement for pre-marital blood tests on June 14, 2013.  

Poster from the Library of Congress https://lccn.loc.gov/98518378

 

 

 

 

Who can't marry?

You cannot marry in New Mexico if:

  • Already married
  • Too closely related (unless legally married in another state): All marriages between relations and children, including grandparents and grandchildren of all degrees; between brothers and sisters of full blood or of half blood; between uncles and nieces; and between aunts and nephews are declared incestuous and absolutely void. Incest is illegal in New Mexico.

30-10-1. Bigamy.

Bigamy consists of knowingly entering into a marriage by or with a person who has previously contracted one or more marriages which have not been dissolved by death, divorce or annulment. Both parties may be principals.

Whoever commits bigamy is guilty of a fourth degree felony.

Morrill Act (1862). 

This act, titled An Act to punish and prevent the Practice of Polygamy in the Territories of the United States and other Places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah, was passed to prevent people from claiming multiple spouses.

"The Edmunds Act of 1882 made polygamy a felony and took away the right to vote, hold office, or serve on a jury from anyone engaged in a polygamous relationship." -Response to Anti-Polygamy Legislation

 

Why Marry?

Current reasons for marriage include a desire to formalize a relationship, cultural expectations, religious requirements, and being able to make medical or financial decisions. In New Mexico an individual can be designated to make these decisions for another with a living will. 

NMSA 24-7A Uniform Health-Care Decisions

In the past, marriage had significant impact on the life and rights of women. Having a relationship recognized or not recognized was important. A recognized marriage would mean legitimate children, inheritance, access to pensions, and social standing. 

Marriage could remove certain freedoms. Spanish law allowed women to keep property owned before marriage, but many U.S. states followed a common law where property of the wife transferred to the husband upon marriage. Children were considered property of the husband.

In 1884 New Mexico passed the Married Woman's Act which stated that a married woman's property before marriage remained hers. This law also allowed married women to enter contracts without the consent of her husband.

Prior to September 1922, a married woman in the U.S. could lose her citizenship if she married someone who was the citizen of a different country. It wasn't until 1936, that "women who lost U.S. citizenship by marriage between 1907 and 1922 and whose marriage had terminated through death or divorce" could "resume her citizenship upon taking the oath of allegiance." (NARA)  

On September 22, 1922, Congress passed the Married Women's Act. This law gave each woman a nationality distinct from her husband. 

 

Common Law

Newspaper heading Common Law Marrage Not Valid in New Mexico. The article mention the Countil of Trent as one of the sources cited.In re GABALDON'S ESTATE. GABALDON vs. GABALDON, 1934

"We think that irregular marriage is now, and has been in the past, as little practiced in New Mexico as elsewhere. In 1860 the non-Catholic population was inconsiderable. The edicts of the church were deemed highly binding upon conscience. Marriage was generally regarded as a sacrament. The Act of 1860 reflects the view that the law of the church in that regard was the law of the state. No doubt, with the influx of men from the east, irregular alliances were formed with native women, some of them perhaps marriages according to the common law. This situation was rather effectively cleared up by the Edmonds-Tucker Act (USCA title 18, § 519), in force here from 1887 until statehood. While it did not itself effect the invalidity of any marriage or attempted marriage, it was in fact rigorously enforced, resulting in {*397} the postponed celebration of many, and in discouraging future alliances except according to the forms of law."

Sources cited and further reading

Dubler, A. R. (1998). Governing Through Contract: Common Law Marriage in the Nineteenth Century. The Yale Law Journal, 107(6), 1885–1920. https://doi.org/10.2307/797340

Alexander Wood Renton and George Grenville Phillimore (1910) The comparative law of marriage and divorce. Bradbury & Agnewl, London

Congress, House of Representatives: June 6, 1930, govinfo, (June 6, 1930), https://www.govinfo.gov/app/details/GPO-CRECB-1930-pt9-v72/GPO-CRECB-1930-pt9-v72-15-2.

Davis, Jennifer. Marriage Equality in the US, https://blogs.loc.gov/law/2021/06/marriage-equality-in-the-us/

Greenfield, Gary E., Author, Susan E Watkins, and U.S.. Global Legal Research Directorate Law Library Of Congress. Doing Research in Current Marriage and Divorce Law: Guide and Selective Annotated Bibliography. [Washington, D.C.: The Law Library of Congress, Global Legal Research Directorate, 1991] Pdf. https://www.loc.gov/item/2021699839/.

Koegel, Otto E. Common law marriage and its development in the United States, John Byrne & Company, Washington, 1922.

May, Geoffery, Marriage laws and decisions in the United States, a manual, Russell Sage Foundation, New York, 1929.

Robinson, G. (2008) United States: Same-Sex Marriage Ban Held Unconstitutional in California. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2008-05-02/united-states-same-sex-marriage-ban-held-unconstitutional-in-california/.

Saether, Steinar A. Bourbon Absolutism and Marriage Reform in Late Colonial Spanish AmericaThe Americas, Vol. 59, No. 4, Cambridge University Press, April 2003.