Wednesday, July 30, 2008

Legalized Bigamy: A Side-Effect of the Same-Gender Marriage Debate and DOMA

Well, this is an interesting kettle of fish! DOMA allows states to not recognize same-gender marriages from one state (CA, MA) in another. Every other state besides those two have either prohibited same-gender marriages or are silent/neutral on the issue.

That means that a same-gender marriage in CA or MA is not valid in neighboring states.

Bigamy laws state that entering into a marriage while currently in a recognized marriage in that state is invalid and illegal.

In 48 states, same-gender marriages are not valid.

But in 2 states, they are.

So if John and Fred get married in CA but later John marries Sue in NV, while still married to Fred, can they both be legal in their respective states? At this point, certainly. NV cannot claim John commits bigamy since his CA marriage to Fred is not recognized or valid in NV. In NV, John is effectively single and can marry Sue. Since he married Fred in CA first, CA cannot legally recognize his marriage to Sue either, and since he did that in NV, CA has no jurisdiction to claim bigamy.

Now, outside of the obvious question of why in the world John would want the insanity of two spouses in different states, this scenario raises a huge point as to why DOMA is royally screwed up, and why banning same-gender marriage is also royally screwed up. DOMA basically had the effect of creating legalized bigamy once MA and CA legalized same-gender marriage!

Sure the idea of the states being “laboratories of democracy” is all well and good, but what does one do when THIS pops up? All the state laws are valid, and everything John did was legal.

Well, there are three non-status-quo options:
1. Ban same-gander marriage nationally.
2. Permit same-gender marriage nationally.
3. Get government out of marriage entirely.

Naturally, as a libertarian, IMNSHO #1 just won’t fly. Marriage has always been about love and commitment and property, not personal plumbing.

#2 is good, but only as a stopping point on the way to #3. If marriage becomes a private contract between consenting adults (no pre-adult or arranged marriages, thank you!), then the state has no role in it except to mediate any contract disputes if the marriage ends. Since marriage licenses grew out of miscegenation laws, removing such a racist license is only fitting and proper anyway.

That’s as it should be. After all, how many of the Founding Fathers had marriage licenses? Answer: Zero. So, if they didn’t need them, then why do we? A good pre-nup contract is all that is needed.

NOTE: I despise the term “same-sex”. Sex is an action, not a condition of being. Gender is a condition of being, and I refer to marriages and other relationships between two males or between two females for what they are: of the same gender. Plus it indicates the truth: these relationships are about far more than the actions of sex anyway, so they deserve proper respect for that depth. And, besides, who ever uses the term “opposite-sex” marriage or relationship anyway?

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