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发帖数: 29846 | 1 North Dakota to Let Man in Same-Sex Marriage Wed Woman, Too
North Dakota Attorney General Wayne Stenehjem filed a legal opinion last
week confirming that the state does not recognize out-of-state same-sex
marriages, allowing a man married to another man to come to North Dakota and
marry a woman without divorcing his husband.
While many wildly speculated that the legalization of same-sex marriage
could lead to polygamy, they probably never thought it would be like this.
Presented with a legal hypothetical, Attorney General Stenehjem answered
three questions: whether someone in a same-sex marriage in another state can
also receive a marriage license to someone of the opposite sex in North
Dakota, whether they can file legal documents as "Single" when they possess
a same-sex marriage license in another state, and whether this would open
the individual up for prosecution under another state's bigamy laws.
The answer to all these questions, essentially, is that a person can legally
possess two marriage licenses in North Dakota, because a same-sex marriage
license is not recognized. The Attorney General did not comment on whether
such a situation would lead to a bigamy charge in another state, suggesting
it was "inappropriate" to comment on laws outside of North Dakota.
North Dakota's constitution prohibits same-sex marriage since the state
voted to amend it in 2004, and the state has an additional statute
prohibiting same-sex unions from valid recognition. Marriages performed
outside of the state are also recognized in North Dakota only when they do
not violate the laws of North Dakota, which would already invalidate same-
sex marriages, but the statute goes further to explicitly cite the
illegitimacy of same-sex marriages in that state.
In addition to state laws permitting this activity, the Attorney General
cites one of the few provisions in the Defense of Marriage Act still
standing after this summer's Supreme Court decision: no state can be made to
respect a same-sex marriage license from another state.
North Dakota's strict laws against same-sex unions had previously led to tax
issues, as well, with the state requesting that anyone holding a same-sex
marriage license in another state file their taxes as a single person,
essentially eliminating the tax benefits that come with a marriage. Without
even looking at the moral implications of forcing a couple with a legal
marriage license to declare themselves single, this clearly looks like a
recipe for tax code disaster. This opinion in particular, which allows a
heterosexual union even when there previously exists a homosexual one,
creates a situation in which three individuals are bound and three
individuals are filing as married to each other. Because of the Constitution
's Full Faith and Credit Clause, the heterosexual union from North Dakota
would have to be recognized in some form in the state that provided the same
-sex marriage license--whether recognized as a criminal, bigamous act or as
a legal license that yields tax credits.
The opinion also creates the most explicit conflict between states on gay
marriage yet. It pits North Dakota against states like New York,
Massachusetts, and Hawaii that now have to choose between violating the Full
Faith and Credit Clause, and upholding a marriage license they issued or
acknowledging North Dakota's intransigence and violating the state's
standards on gay rights. The legal opinion's uncanny timing also pairs it in
headlines with the easing of polygamy laws in Utah, and provides a stark
contrast between what self-proclaimed polygamists want from their government
and what the individual wishing to marry twice in this case does.
The "Sister Wives" family that won the Utah suit only have one marriage
license among them, and do not wish to receive any more. The man in the
North Dakota case wants two marriage licenses, and the right to proclaim
himself single on legal documents until he receives his second. The latter
creates the bigger problem, because the parties in the case want further
government involvement in their lives--not to get the government out of
their lives--and this forces state governments to turn on each other.
The good news for all involved is that a case in which a man wants to marry
a woman after having married a man is a genuinely unusual one, reading
almost as a thought experiment designed to challenge law students on how to
apply the Constitution's Full Faith and Credit and Comity Clauses. But there
is at least one case--that which inspired this legal opinion, and will
provide much to talk about in upcoming months, when the individuals that
inspired the opinion will likely receive their marriage license. |
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