I live in a state that does not recognize gay marriage.
Let’s assume that I went to Vermont where gay marriage is legal and I legally married a male partner. We’ll call him Abe.
When I return to Alabama my marriage to Abe is not recognized. For various reasons I decide to marry another Alabama resident, Betty.
Does this make me legally married to both Abe and Betty? Or does it depend on what state I’m in who I am married to? Or am I legally married to neither since my marriage to Abe isn’t recognized but at the same point my marriage to Betty was illegal in Vermont?
I think it depends on whether the laws against bigamy are federal or state. I think they’re state, so you wouldn’t be breaking the law unless you went back to Vermont.
Since the state of Alabama wouldn’t recognize your Vermont marriage, they can hardly consider you a bigamist. But Vermont would probably recognize both marriages, so to them you’d be a bigamist.
There’s an additional complicating wrinkle in how the Full Faith and Credit Clause applies to states’ recognition (or not) of gay marriage. I don’t know if the particular issue of recognition of gay marriage has yet come up before the federal courts, but a recent federal decision held a state must recognize adoption orders granted by other states to same-sex couples, even if that state does not permit adoption by same-sex couples.
However, to my knowledge, the FF&C clause has never been used to force states to recognize foreign marriages that it did not want to, such as interracial marriages before Loving v. Virginia.
Legally, you’d be married to Abe in both states, under the Full Faith and Credit clause of the Constitution. Unfortunately, a lot of states have decided not to recognize the relevant law.
Perhaps Abe is an ex who the OP’s hypothetical protagonist hadn’t bothered divorcing because he figures it isn’t recognized in his new state of residence.
a) FF&C isn’t the proper legal term for out-of-state recognition of marriages. FF&C is more directed towards out-of-state judgments, not out-of-state laws. For example, if California outlawed marriages alltogether, you couldn’t waltz in from Oklahoma and demand recognition of your marriage. Comity (aka Privileges and Immunities) is what is used for recognition of out-of-state statuses
b) DOMA’s first provision is to add extra weight to the notion that states don’t need to recognize other states’ marriages.
c) Comity, in part, requires that the out-of-state law/status being asked to have in-state recognition not be “against the public policy” of the “being asked” state. Many states have passed specific statutes that state that same-sex marriages are against the public policy of the state, thus eliminating the opportunity to have an out-of-state same-sex marriage recognized under comity grounds.
One question that I’d ask is, Can Sampiro divorce Abe in Alabama? Clearly he can in Vermont, except that Vermont might require residence for a divorce, making that impractical. If he can’t divorce Abe in Alabama, that makes a bigamy charge problematical.
There is about 300,000,000 people living in the US.
The number shrinks when you discard illegals, incompetents and infants, but that is still a huge number of people, and it only takes one to get the idea in his head.
Slight hijack: the situation reminds me a bit of a film based on a story by Isaac Bashevis Singer. Basic plot: Jewish Holocaust survivor, thinking his wife is dead, marries the nice Polish woman who hid him through the war, in a civil ceremony (because she isn’t Jewish). Then his supposedly dead wife reappears. On top of that, he has a Jewish lover who he knocks up…and then marries in a religious ceremony (not recognized legally where he is living).
There have been many straight couples who lived together- unmarried- for many years, then got married and soon after split up. No stats, but it’s fairly well documented phenomena- live together for years and years and then splitsville after their “rumpled bedding’s legitimized”. I heard the end of a news article not too long ago this has proven the case with several gay couples as well. They’ll live together twenty-five years then split up a few months after it becomes legal.
Gay divorce is probably going to become an increasing news topic, especially when there’s a major differential twixt income and wealth among the partners. I can imagine a lot of rich partners suddenly pulling a Henry VIII- “I have some concerns about the legitimacy of our union”- if they live in a state that doesn’t acknowledge gay marriage, while others wave the marriage license that’s only binding in a few states. I wonder if any such case will make major news.