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Same-sex marriage prompts legal questions

BISMARCK – If that same-sex marriage in Minnesota or Iowa doesn’t work out, you can always marry the opposite sex in North Dakota. You don’t even have to get a divorce first.

At least that’s North Dakota Attorney General Wayne Stenehjem’s interpretation of state law, according to a legal opinion filed Thursday.

Burleigh County State’s Attorney Richard Riha said he requested the opinion after a man who still had a legal same-sex marriage in another state came to the county recorder’s office in September and applied for a marriage license to wed a woman.

“You don’t see those every day,” he said.

Riha asked Stenehjem for his opinion on whether a county recorder could issue a marriage license in such a case in which the person with the same-sex marriage hadn’t gotten a divorce.

Same-sex marriage isn’t recognized as legally valid under North Dakota’s Constitution and state law, which both explicitly define marriage as the legal union between a man and a woman.

State law also requires that a prior marriage be dissolved or annulled before a new marriage license can be issued.

In his opinion, Stenehjem wrote that a person’s previously valid same-sex marriage in another state isn’t recognized in North Dakota, so he or she may still obtain a valid marriage license here. The person also isn’t committing a crime by indicating on the marriage license application that he or she was single or never married, the opinion states.

Riha said that was one of the man’s concerns.

“The applicant didn’t want to make a false statement on the application, so that’s what started the whole thing,” he said.

Riha also asked if a person who obtained both a same-sex marriage license in another state and a marriage license in North Dakota would be violating the other state’s bigamy law if he or she moved back there. Stenehjem declined to opine on the interpretation of another state’s law, writing that he will “defer to state legislatures to resolve this unique issue.”

Riha said he forwarded the opinion to the county recorder and expects the license to be issued.

Mike Nowatzki

Mike Nowatzki reports for Forum News Service. He can be reached at (701) 255-5607.