Could A State’s Refusal To Recognize Same-Sex Marriage Facilitate Polygamy?

Jim Burroway

September 9th, 2011

A BTB reader at Virginia Tech emailed this thought experiment:

My spouse and I were talking yesterday, and a question came up that I thought you would find interesting—and that I’ve never seen discussed in a public forum.

In our home state (Virginia), recognition of SSM is banned by our Constitution. We could then, at least theoretically, each legally marry a woman of our choice in Virginia since the state won’t recognize our current relationship.

If we left the state on our favorite vacation route, traveling up the eastern seaboard, we would suddenly find ourselves in states where he and I are married twice, once to each other and also each to a woman. In those states that recognize SSM, I’m assuming our second marriages would be deemed null-and-void. Federally and in states banning SSM, the first marriage wouldn’t count, but the second one would.

The question then is, by creating this mishmash of SSM recognition by states, are they actually be default creating a situation where they’ve legalized polygamy?

Interesting question, especially since I would assume that if the guys wanted to get a divorce in Virginia, the courts would turn them down. As an added mindfreak, it gets even messier if the two women had also married each other elsewhere before marrying the guys in Virginia.

GDad

September 9th, 2011

Genius!

Chris

September 9th, 2011

Two thoughts immediately come to mind:

1. O what a tangled web we weave…

2. Pay no attention to the man behind the curtain!

3. (ok, one more!) Sooner or later there has to be a national standard policy that trumps the power of any state or province and applies to ALL. Being Canadian, our provinces too have particular powers based on the no-longer-applicable history between Ontario (English Protestant) and Quebec (French Catholic). The situations of the past should be learned from, but not allowed to dictate the policies of the future.

Bose in St. Peter MN

September 9th, 2011

A quick look at VA bigamy law, § 18.2-362 says that it’s a felony for a married person to even cohabit with someone else.

So, my question is whether a person married to their same-sex partner in NY, living together in VA, could be charged with bigamy after entering an opposite-sex marriage.

Curt

September 9th, 2011

back door legal polygamy …

However, one Caveat….

Since every state asks if you are currently married in any another state or country… In order for this to work legally, you would first need to marry each other (the same-sex couple(s)) in a state where legal. then, return to your home state (where marriage between a man and a woman is only recognized) and then both marry opposite sex partners).
The reason why it works this way, is that in either state you have violated no laws… if you were to go to NY to marry first, (remember they recognize same and opposite sex marriages, so you would both need to be currently unmarried to anyone). Then, upon returning to VA, the license would ask you the same thing, BUT, they wouldn’t recognize your marriage from NY, so the answer would be that you are currently not married. and yes, you should be able to marry opposite sex partners at that point.
I am even more curious what some states (with mini-DOMA’s) would do if you TOLD them you were legally married to a same-sex partner at the time of your opposite sex marriage.
Now, what happens if/when the DOMA/mini-DOMAs ever get repealed/ruled against etc.. thats where a mess occurs…
to add to this twist, what happens when the whole new family (all 4 of you) then moves to a state that recognizes both same and opposite sex couples? would the state with the mini-DOMA have put the state that recognizes such marriages in a legal conundrum? technically they would be forced to recognize all the marriages? (maybe)
This IS the mess that some of the states are setting themselves up for. though I can see states dissolving marriages that occurred after the original marriage, I don’t see how any could pursue polygamy charges.

TampaZeke

September 9th, 2011

The way the writer proposed it it would still be illegal since bigamy is illegal in ALL states, including those with marriage equality. So if you married the woman first then you would have to lie about it to marry again in the marriage equality state, which would be bigamy; illegal.

Here’s the twist, if instead the gay men married each other FIRST in a marriage equality state, AND THEN went to a non-marriage equality state, with a Constitutional Amendment declaring same-sex marriage null and void, and married women, THEN they could skirt the laws because they could legally and honestly state that they weren’t already married according the the non-equality state’s, and federal law. However, they could still be arrested and prosecuted if they ever entered a marriage equality state or DC.

TampaZeke

September 9th, 2011

Sorry for repeating the points already made Curt. I didn’t read the other comments before posting.

TampaZeke

September 9th, 2011

One more point:

Bigamy? Possibly, under the scenario that Curt and I pointed out above.

Polygamy? Under NO scenario that I can think of since marrying a second woman would be bigamy in the non-equality states and polygamy in the equality states and marrying a second man would be moot in the non-equality states and polygamy in the equality states. In each and every case illegal and prosecutable regardless of state.

tavdy79

September 9th, 2011

It’s actually messier than that, because of the piecemeal recognition of marriage-equivalents between states that have them.

Some jurisdictions with gay marriage only recognise foreign gay marriages, not marriage-equivalents. This was the case when the Cortes Generales legalised gay marriage in 2005: initially it was possible for someone in a British Civil Partnership to get a gay marriage in Spain.

Some jurisdictions with marriage-equivalents don’t recognise marriage-equivalents from other specific jurisdictions. For example, the UK doesn’t recognise DC registered partnerships or HI reciprocal beneficiaries.

Other jurisdictions don’t recognise any out-of-state marriage-equivalents. This was the case in DC until mid-2009.

All this means that in 2006-2008 it was possible for someone already in a Hawaiian reciprocal beneficiary relationship to get (in order) a Domestic Partnership in Washington, a Civil Partnership in London, married in Madrid, then married in Rome.

Aaron

September 9th, 2011

Perhaps the bisexual readers of BTB will be pleased to read this. :)

Jutta

September 9th, 2011

You need not construct scenarios where this might happen, there are already real life cases. Think of those couples who entered into a civil union or marriage and later moved to another state. Later their relationship broke up but they could not divorce because that state didn’t recognice ss marriage even for the purpose of divorce. So the state tells them that they can’t/need not divorce because they are not legally married. If either partner falls in love with someone else (of any sex) and marries the new partner he/she will be in trouble when they move into a state where the former civil union or marriage is valid.

andrew

September 9th, 2011

If a 13 year old marries in NH, where it’s legal, is her marriage legitimate in Nebraska, where the age of consent is several years older?

Barring the Loving v. Virginia decision which found marriage to be an unenumerated right relative to race, thereby making such discrimination illegal and the question moot, how were interracial marriages ignored – or were they ignored – legally, prior to the LvV decision?

Kristie

September 9th, 2011

And this is why both Same-Sex marriage AND polygamy should both be legal. Honestly, I have never understood why it’s any of the state’s business who (or how many people) anyone marries. If everyone is a consenting adult, it should be their business and no one else’s. Government needs to just get out of the marriage business and let people make their own decisions.

Cory Sampson

September 9th, 2011

@Kristie,

There are yet some issues regarding polygamy that can’t be neatly solved under the current legal construct that is marriage. Mostly having to do with property rights, custody of children in the dissolution of the marriage, inheritance issues, etc. These are all coded to deal with a partnership of just two people. To legalize polygamy would require a radical redefinition (and not just the dictionary kind) of marriage – in addition to every single law where the term “marriage” is used. It’s one thing (a very easy thing – see Canada) to open marriage to same sex couples, as none of the technical rules change. To open marriage to polyamorous relationships is, under any current legal infrastructure, impossible.

Erin

September 9th, 2011

I don’t see the last comment I tried to add, so I’m going to type it out again.

@Kristie: To add to what Cory said, the govt-free marriage argument is ridiculous. Spouse is a legal status and the government enforces this status. Cory already listed some examples as to where this status comes into play. How do you resolve these legal relationships by abolishing legal marriage? You can come up with another system, but it would still take some level of government to enforce it, otherwise it would be useless. Or is the goal to have private entities pick and choose which marriages they want to recognize? I suspect a field-day of discrimination will follow and ignoring spousal relationships in order to avoid paying benefits.

Andrew

September 10th, 2011

Erin, I agree, but would modify it a little: a marriage is a contract. Contracts explicitly fall under civil law… so you can’t have marriages without government.

I’ve heard people argue that government should “just do civil unions” and “leave marriages to churches” because that would “solve the problem”. Yeah, except for the establishment clause in the First Amendment.

ZRAinSWVA

September 10th, 2011

Andrew, wrote, “If a 13 year old marries in NH, where it’s legal, is her marriage legitimate in Nebraska, where the age of consent is several years older?”

Wow, great question, and it reinforces my opinion that the marriage contract should be established federally and not on a state-by-state basis. If the contract you establish in one state is not portable to another, what good is the contract?

And I hadn’t thought of the bigamy angle. I guess my husband and I won’t be marrying those nice ladies across the street after all!

WMDKitty

September 11th, 2011

*spiral eyes*

My head…

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