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Stenehjem's ruling on gay marriage could lead to legal nightmares for people in unconventional marriages

December 12, 2013 - Andrea Johnson
Here's another reason for a uniform marriage law in all 50 states.

North Dakota Attorney General Wayne Stenehjem just issued an embarrassing ruling saying it's perfectly legal for a person who entered into a same sex marriage in another state to marry someone of the opposite sex in North Dakota without first divorcing the same sex spouse.

Specifically, Stenehjem wrote that the person, who lives in Burleigh County, committed no crime by indicating on the marriage license that he or she was "single/never married." "It is my opinion because explicitly prohibited by state constitution and statutes, an individual's previously valid same-sex marriage in another state is not legally recognized in North Dakota and he or she may be issued a valid marriage license here," wrote Stenehjem.

With all due respect to Stenehjem and the state's lawmakers and to the letter of the law, this is utterly ridiculous. Presumably this person would be guilty of bigamy if he or she crossed state lines to a state where the first, same sex marriage is recognized. Stenehjem's ruling sets this person up for a legal nightmare, particularly since neighboring state Minnesota has legalized gay marriage. Basically, the person is a criminal as soon as he or she crosses state lines. It also calls into question the validity of other marriages that have been legally conducted in other states or countries. In North Dakota, for instance, it is illegal to marry one's first cousin, but first cousin marriage is NOT illegal in a number of other states. It is also illegal for a resident of the state to go to another state specifically to circumvent this state's laws and marry his first cousin. If a first cousin couple who are residents of North Dakota went to California to get married and then flew back to North Dakota, it would be possible that some over-zealous state's attorney could press charges against them or, at the least, refuse to recognize the marriage. What would happen if a man who had married his first cousin in California broke up with her, moved back to North Dakota without divorcing her and decided to marry someone else here? Most reasonable people would say he's guilty of bigamy, just like the gay person referenced in Stenehjem's ruling, but that doesn't seem to be what the law says.

For the record, first cousin marriage is currently perfectly legal in the following states: Alabama, Alaska, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Maryland, Massachusetts, New Jersey, New Mexico, New York, North Carolina, Rhode Island, South Carolina, Tennessee, Vermont and Virginia. It is also legal in the District of Columbia. It is also legal in Arizona if the first cousin couple are both over 65 or are sterile; legal in Illinois if both are over 50 or are unable to reproduce; and in Indiana if the first cousin couple are both over 65, in Maine if the couple has undergone genetic counseling; in Utah if both are over 65 or if both are over 55 and unable to reproduce, and in Wisconsin if the woman is over 55 or one is unable to reproduce. It is prohibited in all other states.

Gay marriage is currently legal in the following 16 states: Massachusetts, California, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota, New Jersey, Hawaii and Illinois. It is also legal in the District of Columbia. States with domestic partnership laws granting rights similar to marriage are Oregon, Nevada, Wisconsin and Colorado. Eight tribes also recognize same sex marriage, including the Cheyenne and Arapaho Tribes, the Confederated Tribes of the Colville Reservation, the Coquille Tribe, the Little Traverse Bay Bands of Odawa Indians, the Pokagon Band of Potwatomi Indians, the Santa Ysabel Tribe, the Leech Lake Band of Ojibwe and the Suquamish Tribe.

 
 

Article Comments

(17)

Marvin51

Dec-28-13 10:29 AM

So will North Dakota enforce child support of a child adopted by the other partner in a same sex marriage but not by a person in ND?

chadk66

Dec-23-13 7:10 PM

The first thing you have to understand Andrea is Stenehjem isn't an activist judge that can legislate from the bench. His job is to interpret law not make it. He can't change the law for you. It doesn't work that way. He is simply doing his job the way he is supposed to be. If you want legalized gay marriage here you will have to do it through constitutional amendment. And good luck with that.

chadk66

Dec-23-13 7:07 PM

so a judge recently decided polygamy was legal. So is our attorney general supposed to honor a request for multiple wives in ND?

chadk66

Dec-23-13 7:00 PM

so a judge recently decided polygamy was legal. So is our attorney general supposed to honor a request for multiple wives in ND?

AndreaJohnson

Dec-21-13 8:23 AM

Add another state, New Mexico, to the list of states where gay marriage is legal. As U.S District court judge ruled yesterday that Utah's constitutional ban on gay marriage is unconstitutional because it violates the equal protection clause of the U.S. Constitution. That would strongly suggest that North Dakota's constitutional ban is also unconstitutional.

JackAaah

Dec-20-13 10:28 AM

I feel government just HAS to be involved with marriage....just how else can we pass the 'hate laws' as we do?

AndreaJohnson

Dec-15-13 5:37 PM

There's a really icky story out of Australia this week about four generations of inbreeding between brothers and sisters, uncles and aunts and probably grandfather and granddaughters -- physical deformities, mental retardation, totally degenerate lifestyle -- in one family in the bush. They sound like mighty sick people. On the other hand, the offspring of a one-off marriage between first cousins are only at a slightly higher risk of birth defects than an unrelated couple, probably about the same risk that a child born to a mother over 40 would have. Most of the kids are perfectly healthy and normal. The problems arise when you get generations of inbreeding or two members of the family carry recessive lethal genes that are then passed down. I don't think any western country allows marriages closer than first cousins, though uncle-niece marriages used to be condoned in some countries and cultures as late as the 19th century. Some Jewish and royal families practiced it.

Dec-15-13 11:01 AM

A tv special on wisc. isle royale yesterday explained how inbreeding of wolves there is destroying the health of this landlocked, isolated wolf population. Too many close relatives at the dooky doo. Just say no and get a divorce if u want to remarry.

AndreaJohnson

Dec-14-13 8:44 PM

Yes, from a legal perspective, I suppose he is right, but also hope this guy (or woman) isn't stupid enough to get married here without divorcing the same sex sex spouse in another state. As soon as he or she crosses state lines, he's guilty of bigamy. And, given the Supreme Court's recent rulings on gay marriage and reference to the equal protection clause, it's probably only a matter of time before gay marriage is legalized in every state.

waterjoe

Dec-14-13 11:14 AM

From a legal perspective the opinion makes sense. There is no such thing as a "same-sex marriage" in North Dakota. How could it be otherwise?

AndreaJohnson

Dec-14-13 9:45 AM

To answer you, yes, I think prostitution should be legal and heavily taxed and regulated, in every state. I think the lack of regulation makes human trafficking of underage kids easier. I also think the death penalty is barbaric and should be abolished in every state because it is cruel and unusual punishment. North Dakota law on same sex marriage is also unconstitutional because it violates the equal protection clause of the U.S. Constitution, which trumps state law. Sooner or later the U.S. Supreme Court will rule as much. In the meanwhile, Stenehjem has sanctioned this person becoming a bigamist in Minnesota,

EarlyBird

Dec-14-13 8:48 AM

The current confusion with same sex marriage is now same sex divorce. The states that have made laws allowing same sex marriages are working this through court. I have not heard any outcomes yet.

AndreaJohnson

Dec-13-13 11:14 AM

There's an argument that government is involved with marriage because it has an interest in strong families as a building block for society. As the marriage goes, so goes the business, the government, other institutions and so on. I don't think it's contradictory to recognize that gay marriage can also fill that role, as so many gay couples these days raise children, adopted or conceived with the help of donors.

I actually think marriage ought to be more what it is in Europe, with a civil ceremony followed by the religious ceremony, if the couple so chooses. The civil ceremony is the one that is recognized as legal in most European countries.

MattRothchild

Dec-13-13 10:50 AM

But in the end, government shouldn't be involved with marriage.

MattRothchild

Dec-13-13 10:50 AM

I always cringe every time I hear someone saying we "need" a uniform (insert thing here) law.

1) What happened to that thing where the many states were supposed to be separate "laboratories of democracy"? 2) It's a backdoor means of stripping away local control. If we're going to have uniform this and uniform that, why bother have the different states?

AndreaJohnson

Dec-13-13 10:35 AM

Worldwide, about 20 percent of married couples are first cousin couples, according to some stat I read. It's more common in the Middle East. In the West, there's more of a taboo, obviously, but I did know of a couple when I was growing up who were first cousins and had married in Canada. Their children were in school at the same time I was, though they were older. I'm not sure why their marriage ought to have been considered illegal.

I voted no when North Dakota had its vote on whether to put "marriage between a man and a woman" in the state constitution. I thought it was a wrongheaded law at the time and still do. But I also think we need a uniform marriage law, just as we now have uniform laws that recognize child custody across state lines. If a person is married in one state, he ought to be considered married in the other 49 states as well.

MattRothchild

Dec-13-13 9:25 AM

Why do we allow the government to even be involved with this?

 
 

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