North Dakota Attorney General Issues Legal Opinion That a Man in a Same-Sex Marriage May Marry a Woman

A man who was validly married to another man in a state that recognizes same-sex marriages moves to North Dakota. He then seeks to marry a woman in North Dakota, which does not recognize same-sex marriages. Due to this non-recognition, the man cannot get a divorce in North Dakota. The man then applies for a North Dakota marriage license, asserting that he is “single, never married.”

This is the legal hypothetical which was posed by an anonymous caller who contacted the Burleigh County Recorder in September to inquire whether he could marry a woman in North Dakota even though he was already married to a man in another state. The County Recorder asked the Burleigh County State’s Attorney for advice, who, in turn, requested a legal opinion on the question from North Dakota Attorney General Wayne Stenehjem.

In a case which foreshadows the complex and novel legal issues which are certain to arise as the number of states recognizing same-sex marriages increases, Stenehjem recently issued a seven-page opinion addressing the issues presented. First, Stenehjem concluded that the man, under these facts, could legally marry the woman in North Dakota. The Attorney General observed that both North Dakota’s Constitution and its statutes define “marriage” as occurring between a man and a woman. In addition, North Dakota’s statute which recognizes marriages performed in other states specifically limits such recognition to unions between opposite genders. Stenehjem noted that this past summer, the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) when it held that federal law must recognize same-sex marriage in states where it is legal. He underscored, however, that section 2 of DOMA – which provides that no State shall be required to recognize a same-sex marriage from another State if it does not do so under its own laws – remained intact. Therefore, Stenehjem concluded that because same-sex marriages are explicitly prohibited by North Dakota’s constitution and statutes, and because North Dakota does not recognize a same-sex marriage legally performed in another state, “it is my opinion that, even if not legally dissolved, the individual’s previous marriage cannot be recognized in the State of North Dakota and a county recorder may issue a valid marriage license.” In other words, under North Dakota law, the man was considered to be “unmarried.”