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.
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.