The changes, objections, and litigation regarding the redefinition of marriage in the United States have created potential legal and procedural peculiarities that may pose some interesting challenges for attorneys and clients in the near future.
I have written on the subject of marriage, its definition, its changes, and legal procedural issues related to it, before and you can read those pieces here and here. I have also shared my personal thoughts on these issues which you can read here and here.
Now, before you read any further, please note that this post is not going to be my, perhaps expected (and, probably for some of you, annoying, unwanted, and tiresome), complaint and lament on the changes to the definition of marriage and attempt to raise arguments against it, especially now that Pennsylvania has ostensibly legalized same-sex marriage. This post will not focus on that; instead, I am just pointing out interesting legal issues which may arise due to them. The split between the states on the legalization of same-sex marriage, coupled with the perpetual flux in sexual orientations, is ripe for new twists to legal and procedural confusion.
Legal bigamy, as described below, is potentially one of the unintended consequences of the division between the states on the issue of the definition of marriage. Now, I am not referring to the legalization of bi/poly-gamy, which will inevitably happen now that same-sex marriage is sweeping the nation. As marriage has now been redefined and reduced to require merely a single qualification for legitimacy, blessing, and existence, namely having “consenting adults”, I see no logical justification why bi/poly-gamy ought not be legalized (or incestual marriage either for that matter) as all of these can include consenting adults. Indeed, at least there is precedent within human history for bi/poly-gamy, which cannot be said for same-sex marriage, which has absolutely no precedent anywhere at any time ever in human history. Instead, legal bigamy, as referred to in this post, deals with the legal loopholes currently available which will potentially cause tangled litigation in the near future.
In my previous articles (linked above), I have noted that the legitimacy of marriage licenses have been placed into doubt due to the qualifications of the celebrant at weddings as well as their being issued to same-sex couples while same-sex marriage still illegal. I would note that the marriage licenses issued to same-sex couples while same-sex marriage was still illegal (as written about here) remain legally in doubt. Of course, those couples could now simply secure a legal marriage license, but, if these couples divorce (or need to identify their wedding date for some other legal issue), it is unlikely they could use their first marriage license (the one issued while same-sex marriage was still illegal) as that license had no legal effect at its issuance. This is consistent with the fact that, although the Court struck down Pennsylvania’s definition of marriage (despite it being consistent with its definition in human civilization for time immemorial), it did not indicate that its ruling had retroactive effect on previously issued marriage licenses. Therefore, for example, if the same-sex couple who received a previously issued marriage license divorces, the property generated (or lost) between securing said marriage license and a new, and definitively legal, one (as suggested above), may not be on the table for distribution as marital property/debt. Same-sex couples who received the previously issued marriage licenses may seek a declaratory judgment from the Court to confirm their legitimacy, but such a remedy is not guaranteed.
Pennsylvania is now the 19th state to legalize same-sex marriage, while the remaining 31 have retained the historic definition of marriage, not to mention the fact that many now view sexual orientation as unprecedentedly fluid. This can, and likely will, lead to a conflict of laws between states. Here is the scenario: a man marries another man in a state which recognizes same-sex marriage. This same man travels to a state which only recognizes standard/normative marriage and establishes this new state as his legal domicile. As this new state does not recognize same-sex marriage, this man, in the perspective of this new state, is not married. In the new state, this man enters into a relationship with a woman and marries her in the new state and remains domiciled there. As a result, this man has two valid marriage licenses, which makes him a legal bigamist. The man he is married to may not now be eligible for any of the benefits in the new state stemming from his same-sex marriage (e.g.: estate planning, health care, various benefits, pensions/retirement, &c.), not to mention the fact that the filing of taxes will be complicated. The man he is married to cannot seek a divorce in the new state as his marriage is not recognized there. A state which does not recognize same-sex marriage (for the most part) cannot, by definition, divorce a marriage which does not legally exist there.
As states continue to redefine marriage, and marriage and sexuality continue to evolve and fluctuate, strange legal and procedural situations can and will arise, such as the ones above, which will pose challenges to both the individuals in marriage as well as attorneys hired to help them through them and their potential divorces.