A man already married to another man in a state that permits same-sex marriage could wed a woman in North Dakota without breaking state laws, the state’s top attorney has found.
The finding raises potentially complex issues about Social Security and death benefits, tax exemptions and even possible prosecutions for bigamy or polygamy, said a constitutional law expert.
Those issues are likely to arise more often with 16 states plus the District of Columbia now recognizing same-sex marriage while a majority of states still ban it, said Jeffrey Shaman, a professor at DePaul University’s College of Law.
The issue came up when a man giving only his first name called Burleigh County Recorder Debbie Kroshus in September to ask if he could marry a woman in North Dakota if he were already married to a man in another state, she said.
The man could not get a divorce in North Dakota because of the state ban on same-sex marriage and he said the man he is married to also lives in a state that does not recognize gay marriage, Kroshus said.
Kroshus asked the state’s attorney from Burleigh County to seek the opinion from the attorney general.
North Dakota is among the states that ban same-sex marriage by state law and state constitutional amendment. Since it would not recognize the man’s same-sex marriage, he could also marry a woman in North Dakota without breaking state laws, Attorney General Wayne Stenehjem said in an opinion dated Dec. 12.
Stenehjem also found the man would not be committing a crime in North Dakota if he filled out the application as “single/never married” and declined to discuss whether he could be prosecuted for bigamy in another state if he later moved to a state that recognized same-sex marriage.
This whole set up sounds like it could go all bad sooner than later, legal or not.