By Dorian Solot and Marshall Miller

Recently a Deming man was threatened by a judge and detained in jail for doing what some local police officers, prosecutors, and officials do every day: live with an unmarried partner.

New Mexico is one of only eight states that still has an anti-cohabitation law on the books. It doesn't take much to explain why this law is outdated: most people would agree that living with a girlfriend or boyfriend isn't - or shouldn't be - a big deal anymore. One-quarter of all Americans have done it at some point in their lives; slightly more than half of people in their twenties and thirties have done so.

Cohabitation is even more common among divorced and re-married people: the majority of divorced Americans live with a new partner before marrying a second time. Even among senior citizens, cohabitation is common because they can't afford to lose the pension or social security benefits they receive from a deceased spouse. For some disabled people who would lose their financial benefits if they married, cohabitation is the only option.

Most of the time, New Mexico's cohabitation law is ignored. Police don't knock on doors doing spot-checks for marriage licenses. No one has to get a permit to move in with a partner. Many parents these days even encourage their adult children to live with a girlfriend or boyfriend in order to make an informed marriage decision. According to the 1990 Census, there are over 24,000 unmarried partners living together in New Mexico, a higher percentage of the population than in 41 other states. Most days, the law against it might as well not exist.

But for Michael McNair, that quiet law suddenly spoke up, given voice by a judge who decided to unfairly add to McNair's punishment by threatening not to release him on bond because he and his girlfriend had been in violation of the law. After humiliating McNair, the judge finally released him with the stipulation that he not return to live with his domestic partner, who was pregnant with his child.

Similar events have taken place in other states with anti-cohabitation laws. People have been refused state jobs for which they were well-qualified simply because cohabitors - along with violent criminals and other felons - are prohibited from being state employees. Although in most states one unmarried person can claim his partner as his dependent for tax purposes, we're told this can't be done in states with anti-cohabitation laws, because one is not allowed to claim what is technically an illegal relationship.

It's dangerous to ignore the seemingly innocuous anti-cohabitation law. True, it will never affect most of the growing numbers of us who choose to live with our sweethearts. But it is a weapon that is available to those in power who feel the need to legislate our personal lives. Employers, judges, tax collectors, and other officials can use it against us when we are most vulnerable.

Three-quarters of Americans define family as "a group of Americans who love and care for one another." Most of us no longer think that only blood or marriage define the important people in our lives. Most of us agree that a law that tells us who we can love or live with is an unacceptable intrusion into our personal lives. And most of us think that who we choose to share our homes with - be that a trusty dog, a bunch of roommates, a spouse, or a domestic partner - is, quite simply, a private matter.

It's time for New Mexico to catch up by repealing its anti-cohabitation law, as most states have done over the last three decades. Most of you - if you're not in violation of the law yourselves - know someone who is: a child, a parent, a friend, a town official. It's time for the citizens of New Mexico to speak up, to demand to your legislators or bring a court case that challenges this archaic piece of legislation. The law invades people's privacy, legislates people's personal lives, and poses a serious threat to senior citizens and disabled people who can't afford the financial changes marriage would bring. As long as the law is on the books, our freedom to choose who we live with is little more than an illusion.

This op-ed appeared in the Deming, New Mexico Headlight in December 1998.

Note: New Mexico repealed its cohabitation law three years after this op-ed was printed.