Friday, June 15, 2012

'If a man marries a man in California and then moves to Mississippi and marries a woman, is he breaking the law?'

    Something came on the radio about same-sex marriage recently and the kids asked about it. I tried to explain the law as best I knew it.
    This is as follows but subject to debate: If a state prohibits same-sex marriage only by statute, it must recognize same-sex marriages performed in other states pursuant to the Full Faith and Credit Clause of the U.S. Constitution (but for the federal Defense of Marriage Act, which might or might not be constitutional). But if a state has a provision in its state constitution prohibiting same-sex marriages, then the Full Faith and Credit Clause wouldn't apply and thus the state doesn't have to recognize the same-sex marriage.
    I explained that Mississippi bans the marriage of first cousins by statute, but since it is only by statute these cousins can wed elsewhere and the marriage must be recognized in Mississippi, provided the cousins don't leave the state for the purpose of evading the statute. (So don't go inviting guests to your out-of-state wedding, cousins, or it will be void or voidable in Mississippi). If the state were to put a provision in the state constitution declaring such unions void, the these cousins simply would not be married on their moving or returning to the state.
    We were using California as an example of a state that allows same-sex marriage, pursuant to a recent court ruling, although in fact the ruling has been stayed and no marriage licenses are being issued at this time. Feel free to substitute Massachusetts for California for greater accuracy. We were using Mississippi as an example of a state that had enacted a constitutional prohibition against same-sex marriage.
    Now for the conundrum. Lucy posed a question for which I did not have an answer.
Suppose a man were to marry a man in California and then move to Mississippi where his marriage wouldn't be recognized and marry a woman. Would he be breaking the law?
    Certainly the man would not be violating Mississippi law, since Mississippi views his California same-sex marriage as a nullity. But what about California? Certainly that state would view the Mississippi marriage as bigamous.
    A quick Google search on elements and jurisdiction of bigamy suggests that jurisdiction is proper where the bigamous marriage took place. So our man who got married twice could likely move back to California without fear of prosecution. HOWEVER, if he takes his new wife with him and lives with her as husband and wife, it's likely another matter.
    As for what would happen if our twice-married man were to move with his female bride to Connecticut, Iowa, Massachusetts, New Hampshire, New York, or Vermont -- all states which recognize same-sex marriage, I just don't know. Essentially the Mississippi marriage is not bigamous in the eyes of Mississippi or most states, but as soon as the man enters a state that recognizes same-sex marriage he immediately has two legally recognizable unions and therefore becomes a bigamist in the eyes of that state.
    I think my daughter had a very good question. I can only guess at the answer. No doubt it's already shown up on some law school exam.

ADDENDUM, June 15, 7 p.m.: At some point this issue is bound to come up. But even more interesting and important that the criminal aspect is perhaps how the law of descent and distribution will be handled. In other words, who gets the bigamist's money and property when he dies? Clearly there will be a legal fight over the right to probate the estate the likes of which the courts have never seen.

In the above example, the jilted California same-sex spouse is sure to try to probate the estate and claim his spousal rights under California law. In Mississippi, the heterosexual wife will do the same. Both have equally valid marriages in the eyes of their states of residence, so what are their rights?

If the deceased bigamist has a bank account in both Ohio and Massachusetts, what will these banks do with the money. Will the Ohio bank send the money deposited there to Mississippi since Ohio doesn't recognize same-sex marriage while the Massachusetts bank does the opposite?

There's going to be some interesting litigation before all of this is resolved.

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