A man who was validly married to another man in a state that recognizes same-sex marriages moves to North Dakota. He then seeks to marry a woman in North Dakota, which does not recognize same-sex marriages. Due to this non-recognition, the man cannot get a divorce in North Dakota. The man then applies for a North Dakota marriage license, asserting that he is “single, never married.”
This is the legal hypothetical which was posed by an anonymous caller who contacted the Burleigh County Recorder in September to inquire whether he could marry a woman in North Dakota even though he was already married to a man in another state. The County Recorder asked the Burleigh County State’s Attorney for advice, who, in turn, requested a legal opinion on the question from North Dakota Attorney General Wayne Stenehjem.
In a case which foreshadows the complex and novel legal issues which are certain to arise as the number of states recognizing same-sex marriages increases, Stenehjem recently issued a seven-page opinion addressing the issues presented. First, Stenehjem concluded that the man, under these facts, could legally marry the woman in North Dakota. The Attorney General observed that both North Dakota’s Constitution and its statutes define “marriage” as occurring between a man and a woman. In addition, North Dakota’s statute which recognizes marriages performed in other states specifically limits such recognition to unions between opposite genders. Stenehjem noted that this past summer, the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) when it held that federal law must recognize same-sex marriage in states where it is legal. He underscored, however, that section 2 of DOMA – which provides that no State shall be required to recognize a same-sex marriage from another State if it does not do so under its own laws – remained intact. Therefore, Stenehjem concluded that because same-sex marriages are explicitly prohibited by North Dakota’s constitution and statutes, and because North Dakota does not recognize a same-sex marriage legally performed in another state, “it is my opinion that, even if not legally dissolved, the individual’s previous marriage cannot be recognized in the State of North Dakota and a county recorder may issue a valid marriage license.” In other words, under North Dakota law, the man was considered to be “unmarried.”
Stenehjem then turned to the question of whether the man would be committing a criminal act by signing a marriage application, under oath, stating that he is “single/never married.” The Attorney General answered this question in the negative. He explained that “it is my opinion that since the North Dakota Constitution prohibits the recognition of [a same sex] union, the individual would not be committing a criminal violation in this state by indicating he or she was ‘single/never married’ on a signed marriage application.” Accordingly, the man could receive a license to marry the woman.
The final question addressed by North Dakota’s Attorney General was whether the man risked violating another state’s bigamy laws if he obtained a marriage license in North Dakota, and thereafter moved to another state in which the previous, same-sex marriage is considered valid and recognized. Stenehjem declined to opine on the interpretation of another state’s law and he “defer[ed] to state legislatures to resolve this unique issue.”
Currently, 16 states plus the District of Columbia recognize same-sex marriages. However, the majority of states – like North Dakota – still prohibit it. As more people enter into same-sex marriages, move to other states, and then decide to part ways, this matter is only the first of what is sure to be many instances where these and other complex legal questions will arise.