Let’s say, hypothetically, that a man marries another man in the state of Massachusetts, where it is legal to do so.
They then move to North Carolina, a state that currently does not recognize same sex marriage as being legal.
Once there, one of the men in the relationship decides to marry a woman. (Again, this is a hypothetical situation, but not an impossible to imagine scenario).
So… since North Carolina by law doesn’t recognize the validity of the marriage in Massachusetts, I suppose they would allow the man to marry a woman.
I’m curious what happens with Massachusetts, for in their eyes, the man is now married to two partners.
I also wonder about the legal repercussions.
Does anyone have a clue how these two rules of law coexist currently, and when North Carolina eventually does allow same sex marriage - which marriage becomes null and void, or is that left to the individual to choose?
According to that, Arkansas considers first cousin marriages void. I take it that means that when moving there, they do not in any way consider you married? So then you would be able to get a second marriage in Arkansas. So, how does Alabama and the federal government see this? I can’t imagine it has never happened.
Well, according to the AG, North Dakota will let you marry a person of the opposite gender even if your gay-married in another State, without fear of ND’s anti-bigamy laws. Sadly he doesn’t opine on what would happen if you then went back to where both marriages are valid.
But presumably Massachusetts wouldn’t recognize your second marriage, so your straight marriage would be void in Mass, and your gay one would be void in ND.
But I think most bigamy laws require you to present yourself as a married couple. So I guess you’d probably be OK back in Massachusetts unless you tried doing something fraudulent with your double marriage, like having both spouses joint file their tax-returns with you or somesuch.
The whole hodge-podge of questions like these, goes to show what a hodge-podge the states have made of the Constitution on this hot-button issue.
There is a clause somewhere in the Constitution that requires every state to “respect” the laws of every other state. If there weren’t so much irrational hysteria over alternative marriages of various sorts, this ought to be clear: Every state ought to respect and recognize any marriages from any other state that are legal in the state where the marriage occurred – even if the same marriage would not be legal in the other state. Once a marriage happens legally (in the place where it happens), it should be recognized as valid everywhere else too.
But they won’t do that. Rules about who can marry who are just too ingrained in some people’s small minds that they simply cannot accept that other states have deigned to allow gay marriages, or some kind of cousin marriages, or interracial marriages, or whatever.
Because, as mentioned in the OP, Americans can and do freely move between states.
A more realistic scenario is that a bisexual man marries a man in Massachusetts, tires of him, and breaks up without divorcing. Years later he moves to North Dakota and marries a woman. Two weeks after that, he dies in a tragic accident, leaving assets but no will. Which of the two legal spouses inherits? By federal law (at least for the last couple of years), Mr. Massachusetts; by state law, Mrs. North. Do you think the two are going to just be grownups about the whole thing and split it down the middle?
Never mind the illegitimate minor daughter he fathered on a nun during a wild weekend in Vegas, later adopted by two lesbian lawyers in Texas…
Legal scholars have disagreed on the effect the Full Faith and Credit clause of the US Constitution would have on same sex marriage. This Huffington Post article* provides a pretty good summary explanation as to why FF&C probably does not apply to SSM.
So, returning to the OP’s hypothetical… it would be a mess but there might be a precedent out there.
For the most part states have not sought to treat a marriage as invalid if it was entered into lawfully in another state, even if it would not be lawful to enter into in the first state. The issue was faced with anti-miscegenation laws as well as laws limiting the degree of familial relationship between spouses.
*There is an in-article link to the full legal analysis. The abstract and PDF download link for the full article can be found here.
The whole issue of same sex divorce in non-SSM states is very messy right now. If you live in a non-SSM state, it’s sometimes impossible to have your same sex marriage legally dissolved since your home state doesn’t recognize the marriage but the state you got married in doesn’t consider you a resident. Right now, it’s not too hard for people in that situation to just sort of de facto stop being married, especially if they just eloped and never actually lived in an SSM state and thus don’t have any shared assets or anything like that.
Even beyond the hypothetical in the OP, I’ll bet there’s more than a few same sex couples in places like Utah or Oklahoma who took the “just stop being married” approach thinking their marriages would never be recognized in their home states who might be risking bigamy prosecution (not to mention nasty civil litigation) if they remarried or try to remarry in the future. I would think the states that came around on their own would probably be fairly understanding, but I could see some of the more conservative states that were wrangled into recognizing SSM by the federal courts deciding to get tough on people who were made bigamists as a result of the recognition.
Contrary to the position argued in the Huffington Post article, recent court rulings have been unanimous in holding that a state cannot refuse to recognize a same-sex marriage lawfully entered into in another state. A recent example, from a federal court in Ohio, can be found at http://lawprofessors.typepad.com/files/obergefell.pdf. The state is appealing the ruling to the U.S. Court of Appeals for the Sixth Circuit, which hears appeals in federal cases from Ohio, Michigan, Kentucky, and Tennessee.
No, it was pretty much just that the rest of the country found polygamy distasteful. It certainly would have raised some difficult legal questions if Utah had been allowed to keep polygamy while the rest of the states (presumably) kept their bigamy laws, but I don’t think anyone on the federal level really entertained the idea of letting them keep polygamy enough to consider the interstate implications.
Not mention that for the past year the IRS has recognized same-sex marriages, even where the couple live in a state that doesn’t recognize same-sex marriage. GreasyJack’s hypothetical couples better make sure they’re filing their federal taxes correctly.
If you don’t live with your spouse for more than half the year, you can still file as unmarried so that wouldn’t be an issue.
I actually do know a couple that’s sort of in this situation. They got married on vacation in Canada a few years ago and then broke up shortly thereafter. They didn’t get divorced or anything, but as far as they know they’re pretty much off the hook as far as anyone cares. They’re still on good terms and are generally pretty responsible people, so I imagine when we get SSM they’ll get together and get officially divorced just to be sure. I doubt every couple in that situation is going to, though.
Not so clear just how “factually incorrect” or not I was in writing that, or in your response here. According to the last few paragraphs of the Wiki you linked, not to mention a number of posts in this thread, this is still an evolving area of law. The wiki and some of the above posts cite cases in which courts have compelled states to recognize out-of-state same-sex marriages that they otherwise would not have recognized.