With same sex marriage now legal in 17 states and the District of Columbia, there are a number of residents of North Dakota who have entered into same sex marriages in other states and then returned to live here. The state’s Attorney General has now issued a legal opinion that says that such residents are still eligible, if they wish, to get a North Dakota marriage license and enter into a heterosexual marriage with a member of the opposite sex–even if they don’t get a divorce from their same sex spouse. This strange wrinkle in family law was made possible, in the official’s eyes because the state of North Dakota does not recognize the validity of same sex marriage.
Therefore, in the eyes of the state, the same sex marriage does not exist, so the person is single, and therefore eligible to apply for a marriage license and get married to a member of the opposite sex. And they would not have to get divorced first from what the state regards as a nonexistent marriage. The legal opinion was issued in response to a question from the Burleigh County State’s Attorney following an incident that occurred recently in which a male who had entered into a legal gay marriage with another man in another state asked the county recorder to issue him a marriage license to get married to a woman. He had not obtained a divorce from the same sex marriage.
The opinion leaves unanswered a variety of questions. Given that the other state in which the man was married regards the same sex marriage as valid, would he be considered a bigamist in that other state if he gets married to a woman in North Dakota? And, given that the federal government now recognizes same sex marriages legally entered into for purposes of federal income tax, spousal Social Security benefits, military benefits, etc., would these benefits apply to the same sex marriage, the heterosexual marriage, or to both, since each marriage would be valid and legal under the laws of a separate state?
Source: WDAZ, “Same-sex marriage prompts legal questions in North Dakota” Mike Nowatzki, Dec. 13, 2013