I wouldn’t have thought that the dissembling by the anti-marriage crowd could get worse when they had to admit that Utah’s polygamy law wasn’t really overturned after all, but it just did.
The following arrived from Citizen Link:
It’s what many marriage supporters have been trying to point out for months: The redefinition of the institution could pave the path to legalized polygamy.
North Dakota Attorney General Wayne Stenehjem filed a legal opinion Thursday basically saying that a man who married another man in another state, may obtain a marriage license — with a woman — in North Dakota. That’s because same-sex marriage is not recognized in North Dakota.
Quite true, that last part. North Dakota was one of the states to pass a constitutional amendment back in 2004 restricting civil marriage to “man-woman couples” (we may wish to return to a discussion of how that happened).
Also, AG Stenehjem was responding to a hypothetical question. There is no actual man in a North Dakota case, a detail omitted by Citizen Link.
But it’s this framing, quoting a Breitbart columnist, that really impressed me with its capacity for expressing the exact opposite of reality by stating bald, incontrovertible facts. This is a work of art.
“The ‘Sister Wives’ family that won the Utah suit only have one marriage license among them, and do not wish to receive any more,” Martel said. “The man in the North Dakota case wants two marriage licenses, and the right to proclaim himself single on legal documents until he receives his second.”
Correct on both counts. The Brown family in Utah was not seeking legal recognition of plural marriage. And given that the hypothetical North Dakota man’s out-of-state marriage is not recognized by the State of North Dakota, and the State of North Dakota considers him to be legally single, why wouldn’t he be eligible for a marriage license that his state would recognize?
Here is the issue: I think everyone would have to agree that the agenda of Citizen Link and its ideological siblings has been to enforce, by legislative and other means, a definition of marriage restricted to one man and one woman.
It is that agenda that’s wholly responsible for the criminal prosecution of the Browns in Utah, not for seeking multiple civil marriage licenses, but for publicly “holding themselves out” as married, and for the result that the unconstitutional prong of the Utah law was struck down. And it is that agenda that’s wholly responsible for North Dakota’s refusal to recognize a marriage performed in another state. Citizen Link even manages to point out the source of the problem: “The [DOMA] ruling did not affect Section 2, which says that no state is required to recognize another state’s redefinition of the institution.” This – and the fact that North Dakota regards this hypothetical man as legally single – is the very result Citizen Link has fought so long and hard for. Why are they complaining about the AG opinion?
Sorry, Citizen Link – but you can’t have it both ways. If your objection is that this man will “have two marriage licenses,” then you are accepting the legitimacy of his marriage to another man. The alternative is concurring with the authority of North Dakota to consider him single. Pick one.
This 2011 opinion from the British Columbia Supreme Court illustrates pretty comprehensively why the “slippery slope” argument is specious; as I note above, same sex marriage and polygamy are very different things that generate very different arguments.
Hugh, I did read the Weekly Standard article you linked to yesterday, and this statement jumped out:
This is utter nonsense, and betrays a fundamental misunderstanding of what bisexuality is.
Sexual orientation and beliefs about the nature of marriage are separate phenomena, completely independent of one another. One can be of any sexual orientation and believe either 1) that marriage is by definition a union between two people or 2) that it can encompass unions between more than two people.
All that “bisexual” means is that an individual has more or less equal capacity to be romantically, sexually and emotionally attracted to either a man or a woman. It does not indicate a need or desire to be in relationships with both men and women at the same time, or a “group marriage.”
Having said that, I don’t see any reason that, because the cohabitation prong of Utah’s law has been stricken as unconstitutional, the law against bigamy must inevitably also be found unconstitutional. I don’t know that there isn’t a compelling state interest to keep it in place. I also don’t know that there is, but I have yet to hear the arguments either way. The Brown case wasn’t about that. What I do know is that the arguments for and against establishing a right to civil marriage between two people regardless of gender will be very different from the arguments for and against changing the structure of civil marriage to include more than two people, because those are fundamentally very different things.
What if our North Dakota inquirer is bisexual? Completely apart from the whole polygamy discussion there is the issue of what does the GLBT “community” do to satisfy the orientation of someone who is bisexual when it comes to affording them the protections of marriage? To express their orientation and keep all of that within the “bonds of marriage,” a bisexual man or woman needs at least one same sex partner to whom they are married, and one opposite sex partner, to whom they are also married at the same time.
I can think of another context where the hypothetical man would have been celebrated as an “ex-gay.” So which is it CitizenLink? Is he an ex-gay who escaped the “lifestyle” to find love and Biblical marriage, or is he a polygamist?
The reasoning is very simple. Cohabitation laws (which have a large number of roots in racist black/white “informal” marriages in the south) are noxious, impossible to enforce, and clearly unconstitutional if you adhere to recent decisions like “Lawrence v. Texas.” The first amendment protects speech. Kody may call his wives MARTIANS if he wishes to, or wives. He believes what I frankly hold to be a ridiculous religion (no evidence exists for “Nephites” or “Lehi” or other Mormon/LDS myths, but he may SPEAK of them as if they are real and he may BELIEVE on those stories).
He can thus adhere to his religion (hence religious “cohabitation,” a version of “don’t ask don’t tell”) and he may refer to the women in his house as snake charmers, co-believers, wives or Shetland Ponies. He may go about declaring that. All the state can say is that it’s not going to sign on to what he believes, but they may not prohibit him from believing it or talking about it or even acting like it’s true because all involved are consenting adults.
Frankly, I just want the state OUT of marriage altogether, but we’re dealing with the ultimate control freaks here (government) and we the voters are their shameless sycophants. All of us are inclined to vote to restrict each other’s behavior or force each other into doing what we want them to do. Cooler heads must prevail and we must admit what is really none of our business is really, truly, practically speaking, none of our business. Government will never be out of marriage until there is no income tax and until private marriage records can be submitted to defeat charges of child rape/molestation.
Thus plural marriage must eventually be a fully recognized legal estate. I’ve got my coffee but I couldn’t find any popcorn. I popped some ramen in the microwave and laughed all the way through Rush Limbaugh’s take on the whole issue.
I’m the house husband today, so I’m going upstairs to clean.
Oh, I don’t disagree that we have a paradox. That was kind of my point, really – it’s a paradox that was created by the effort to “permanently” restrict marriage to one man and one woman. And this sort of paradox is nothing new – there have been cases for years involving contradictory state law regarding legal change of gender on birth certificates and who can marry whom in which state because of the various combinations. I totally agree, this is popcorn time.
My point about the case being hypothetical is that until there is actually a filing of some kind we don’t know whether the request is real or just the means of generating the legal opinion.
Do you mind talking more about why you’re a proponent of plural marriage? What did you think of the reasoning in the Brown v. Buhman opinion?
You originally declared that there was no one actually asking the question: “There is no actual man in a North Dakota case, a detail omitted by Citizen Link.” If there was no actual man, then the Burleigh County official lied. One cannot fault the North Dakota Attorney General for believing that the hypothetical was asked on behalf of a real individual, perhaps one that did not wish to get charged with bigamy for attempting to obtain a marriage license. Everything in the October 8th article I cite is states the man in question was unnamed, but real. Your assertion that “There is no actual man” is true only if the Burleigh County Recorder is lying or alternately, North Dakota Attorney General Wayne Stenehjem is. Either way we’re entitled to believe there is an “actual man” until it is shown otherwise.
The fact is, by the 14th amendment, our unnamed man, still in a same sex marriage, is a citizen of this country. That amendment is cited in Brown v. Buhman. I think what plural opponents and proponents are pointing to is the fact that we have now a paradox. By whatever law the man married another man, he is married per that state. He wouldn’t be recognized in North Dakota for that marriage, and they don’t want to toy with any recognition of his same sex union, so they then must logically allow him marry heterosexually. In the state he married his husband, he may be in violation of the law, and perhaps he ought not go back there until he divorces, and in the state where he marries his wife (North Dakota) he’s married to her, but as a citizen of the United States, he’s married twice, legally, at the same time.
This is messy and not easy to understand and that will drive the issue. If he accomplishes his goal, or if another opportunist takes advantage of this probably temporary loophole, we’re going to have a legal paradox on our hands. It could easily be taken advantage of by some people I know who have two wives, at least one of which is “informal.” Such people will kick and scream all the way through the appeals process (assuming they go to North Dakota to jump through the loophole) to preserve their marital status, and we’ll have the polygamy or open marriage “test case” as a result.
Frankly, I am a proponent of plural marriage, so I hope they don’t close the loophole (unlikely) or they don’t move quickly to do so (more likely). The easiest way for North Dakota to get out of this is to pass a law for civil union or same sex marriage. If they try to pass another law to deal with the issue, they’re going to be taken to task by people on your side of the aisle.
The whole “holding yourself out” issue is way too close to “purporting” to be married. It’s possible we may end up with some version of “don’t ask, don’t tell.” I’m frankly getting some popcorn on this one, and kicking back. I can occasionally be counted on to stir the pot and keep it cooking.
The AG really couldn’t be any clearer, could he?
Let me put it another way: Do you think the AG should have answered the question put to him differently, and by what rationale could he posit that the out-of-state marriage must be recognized by North Dakota?
The Breitbart columnist does refer to an unnamed “case” she claims to be the “inspiration” for the hypothetical question. As your link confirms, it amounts to nothing more than a county clerk having received “a request” for a marriage license. And he may well get one if it turns out the request itself wasn’t hypothetical. So what?
The fact remains that for actual bigamy to exist, there must be more than one legal marriage license. If a state is constitutionally barred from recognizing a license as legal, it can’t be counted toward the total of “more than one.” It’s not enough, as we’ve certainly been lectured many times by the architect of Virginia’s own amendment, for the individual in question to “hold himself out” as married to another man in another state. That’s not a legal marriage in Virginia, nor is it one in North Dakota. So I’m not sure why there’s such consternation among proponents of one-man-one-woman-only marriage over this. They got what they wanted: He’s a single man according to North Dakota public policy, hence no bigamy.
What do you propose that North Dakota’s legislature do to close the “loophole”?
At least to begin with, there supposedly was such a man:
“The (Burleigh North Dakota) County Recorder received a request from someone wanting a marriage license. That individual had been in a same-sex marriage in a state that recognizes those marriages. The parties in that marriage separated – but did NOT divorce. Now, the individual wants a North Dakota marriage license to wed someone of the opposite sex.”
( http://news.prairiepublic.org/post/same-sex-marriage-subject-attorney-generals-opinion-request )
The ruling came down the day before Waddoups “religious cohabitation” ruling in the Brown v. Buhman case.
( http://jontrouten.blogspot.com/2013/12/north-dakota-attorney-general-i-believe.html )
The Netherlands has already had a bisexual marriage/civil union based on preference.
( http://www.weeklystandard.com/Content/Public/Articles/000/000/006/494pqobc.asp )
The formula is simple. Structurally a “bisexual marriage” resembles either a polygyny (Holland) or a polyandry (North Dakota). It matters little that in the first case the result was intended, or in the second, that it was a loophole or accident of law where the man has no intention of remaining with his former husband. The forms are the simplest and most basic versions of polygamy, which is more than one spouse. By leaving the door open, North Dakota might create a legal polygamy in the Burleigh county case, or someone will do so quite intentionally as the result of this opinion. That is, until North Dakota’s legislature meets and closes the loophole, assuming no one takes advantage of the current situation.
It may not have been intended, but the slippery slope just got frictionless and we’re all at the bottom of it. Keep in mind that the same sex marriage strategy was first to decriminalize (Lawrence v. Texas), then to legalize through civil union & then marriage (Vermont). Like it or not, polygamy is on the same path, even if it’s only an accident. “Right Wing (nuts)” have been on this from the beginning.