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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.
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