North Dakota Attorney General Wayne Stenehjem (R) issued a new advisory opinion Thursday clarifying that because the state does not recognize same-sex marriage, an individual who entered into such a marriage in another state does not have to obtain a divorce in order to enter into an opposite-sex marriage in North Dakota. Stenehjem was responding to a series of questions from the Burleigh County Recorder regarding how to proceed in issuing a marriage license:
- May a County Recorder issue a marriage license to an individual who had previously entered into a same-sex marriage that was valid in another state, did not obtain a divorce, and is now seeking to enter into a marriage legally recognized in North Dakota?
- Would such an individual be committing a criminal violation by signing a marriage application, under oath, stating that he or she is “Single/Never Married”?
- Does the individual risk violating another state’s bigamy statute if that individual obtains a marriage license in North Dakota but then moves back to a state in which the previous same-sex marriage is valid and recognized?
On the first question, Stenehjem unequivocally concluded that the license could be issued, citing the many ways state lawmakers painstakingly clarified that no same-sex marriage from another state should ever be recognized in North Dakota. This is codified both in state law (1997) and in a constitutional amendment (2004). He also noted that Section 2 of the Defense of Marriage Act (DOMA), which the U.S. Supreme Court did not address in its decision this year, maintains that no state is required to recognize a same-sex marriage from another state.
Stenehjem thus suggested that there would be no criminal violation if the marriage applicant declared that he or she was “Single/Never Married.” Even if it’s undeniably true that the individual was (and is still) married to someone of the same sex, that marriage simply does not exist under North Dakota law.
On the third question, Stenehjem simply offered that it would be “inappropriate in a legal opinion to interpret the laws of other states,” but this is indeed the question with the most implications. Minot Daily News contributor Andrea Johnson condemned the opinion as “embarrassing” and “utterly ridiculous” for ignoring the significance of this point.
When the Supreme Court overturned Section 3 of the DOMA in June, it opened the door for the federal government to recognize same-sex marriages for the first time. Many agencies, such as the IRS, have issued guidance stating that same-sex couples’ marriages are valid wherever they go so long as it was legal in their place of celebration. Thus, for example, such a couple could legally marry in Minnesota, move across state lines to North Dakota, and still file their federal taxes jointly. In the case of the individual who applied to marry in Burleigh County, his or her same-sex marriage could still be valid for federal recognition.
There is currently not, however, any federal law that specifically addresses bigamy, so even though both of the applicant’s marriages would be valid in the eyes of the federal government, there is no apparent conflict with federal law. The individual in question is said to be separated from the previous same-sex spouse, but it’s unclear what would happen if he or she hypothetically tried, for example, to somehow claim both marriages for tax purposes. It’s similarly unclear what would happen if the previous spouse still tried to claim “married” status.
Though there is no federal law prohibiting bigamy, it is banned in all 50 states. Stenehjem offered no opinion on the matter, but it seems quite clear that if the applicant traveled to a state that recognizes same-sex marriages after entering a second marriage in North Dakota, he or she would be in violation of those anti-bigamy laws. Only by staying in one of the 34 remaining states that do not recognize same-sex marriages could that individual legally maintain this unique dual marriage status.