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December 17, 2013

This Opens A Whole New Can Of Worms

This presents a real conundrum.

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 Attorney General's response can be read in full PDF form here.

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.

Ultimately, this is going to result in one of two things, if not both.

1) If a state refuses to recognize a marriage from another state and issues marriage licenses to those married in other states to enter into a marriage with a different partner, we will have had the de facto legalization of polygamy in this country in a fashion quite different than envisioned in the ruling I wrote on yesterday.

2) If states refuse to grant marriage licenses to those who have a same sex marriage from another state that is not legally recognized under an statute or constitutional provision banning recognition of same sex marriages, then the result is the de facto recognition of same sex marriage by the states that de jure reject such recognition.

In the end, the result will be that federal courts will have to resolve the matter and impose a solution on all 50 states and the federal government. Will it be mandatory same sex marriage recognition? Or will it be a federal rejection of same sex marriage? Or, perhaps, will it be a recognition of polyamorous marital combinations?

Regardless, this demonstrates the correctness of those who objected to the legal recognition of same sex relationships as marriages -- it cannot be left to every state to decide on its own.





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