Gay Polygamy? Mass. Gay Divorce Blocked by Prior Vt. Civil Union

The Massachusetts Supreme Judicial Court has ruled that a same-sex marriage contracted in Massachusetts was void ab initio under the Massachusetts law against polygamy, because one of the parties to the marriage had never formally dissolved a prior Vermont civil union.  The court's unanimous ruling means that a pending divorce action to end the Massachusetts marriage will be dismissed.

According to the opinion for the court in Elia-Warnken v. Elia, SJC 11023 (July 26, 2012) by Chief Justice Roderick Ireland, plaintiff, formerly known as Todd J. Warnken, entered into a civil union in Vermont in 2003.  There is no allegation that his civil union partner is deceased, and no proof that the civil union has ever been dissolved in a court proceeding.  Nonetheless, in 2005 Todd Warnken and Richard Elia were married in Worcester, Massachusetts, after which Todd hyphenated his surname as Elia-Warnken.  In April 2009, Todd filed a divorce petition in the Worcester Division of the Massachusetts Probate and Family Court, seeking to end the marriage.

Richard responded with an Answer, stating that he was married to Todd and counterclaiming for divorce, but "at some point, the defendant apparently discovered that the plaintiff had an undissolved civil union."  This posed an interesting question: Was the Massachusetts marriage ever valid, considering that Massachusetts has a polygamy statute that says that a marriage is void ab initio (from its inception) if one of the parties already has a husband or wife?  If there was no valid marriage, then there would be no need for a divorce.

The Probate Judge submitted the question to the Appeals Court; as this was purely a question of law, the Supreme Judicial Court transferred the case directly to its docket. 

The court decided that for purposes of construing the marriage and polygamy laws, a Vermont civil union should be recognized as "the equivalent of a marriage" in Massachusetts. 

Justice Ireland provided some background on the history of the Vermont civil union law and the status of same-sex marriage in Massachusetts.  Vermont enacted civil unions in 2000 response to a decision by its state supreme court that same-sex couples were entitled to the same legal rights and benefits as different-sex couples.  The Civil Union Act, the first of its kind in the United States, created a status parallel to marriage in terms of state law, and provided a judicial process like divorce for dissolving civil unions.   In 2009, Vermont enacted a marriage equality law and stopped creating new civil unions; existing civil unions could be converted to marriages, but the existing civil union status would continue to be recognized by the state for those who didn't want to take the trouble.  However, it was clear that enactment of the 2009 marriage law did not terminate existing civil unions. 

In Massachusetts, same-sex marriage became available pursuant to a decision by the Supreme Judicial Court in November 2003 that took effect in May 2004.  In the interim, the legislature asked the court whether a civil union law would meet state constitutional requirements.  The court responded, 4-3, that only marriage would satisfy the equality requirements of the Massachusetts constitution.  Civil Unions and marriages are not the same thing, said the court. The separate name and classification connoted a second-class status.

Arguing that his Vermont civil union is irrelevant to the validity of his Massachusetts marriage, Todd stressed this holding by the court.  If the Massachusetts Supreme Judicial Court ruled in 2004 that civil unions are different from marriages, and the Massachusetts polygamy ban refers only to husbands and wives, not to civil union partners, then his Massachusetts marriage was valid and a divorce is necessary to terminate it and, incidentally, he was not guilty of polygamy.

But the court did not see it that way.  It said that the status of the Vermont civil union should be analyzed under principles of "comity," the doctrine used by courts to determine whether to recognize foreign marriages, and that applying those principles, the court would recognize the Vermont civil union as creating a status equivalent to marriage that required a judicial process for its termination.  "Recognizing civil unions solemnized elsewhere is not the same as creating civil unions as an alternative to marriage in the Commonwealth [of Massachusetts] and thus does not run afoul of the conclusion of four Justices" in the 2004 decision, wrote Justice Ireland.  "Rather, it removes any discriminatory treatment of same-sex couples that might flow from a civil union." He pointed out that refusing to recognize a civil union would be "inconsistent with the core legal and public policy concerns" that the court had articulated in its same-sex marriage rulings: "protection and furtherance of the rights of same-sex couples."

The court also found another "compelling reason" in the context of this case: "to avoid the uncertainty and chaos that would otherwise result."  The problem, of course, is that if the same individual could have at the same time a valid Vermont civil union with one person and a valid Massachusetts marriage with another, "he would have two legal spouses, each of whom could expect virtually the same obligations from him, such as spousal or child support, inheritance, and healthcare coverage."  What if Todd had died, for example, leaving a surviving Vermont civil union partner and a surviving Massachusetts husband to fight over who is entitled to spousal inheritance rights?  "Likewise," wrote Ireland, "the plaintiff could demand the same obligations from each of his spouses.  Preventing complications such as these is one of the purposes of the polygamy statutes."

Having recognized the Vermont civil union in this context, the court found the application of the polygamy statute to be an easy step, rejecting Todd's argument that because Vermont civil union partners are not referred to in the Vermont Civil Union Act as "husband" or "wife" to be essentially irrelevant.  Ireland noted that in the Massachusetts court's initial same-sex marriage case, it had mentioned that the polygamy statute should be "read in a gender-neutral manner.  Therefore, we read the words 'husband' and 'wife' to mean a legal spousal relationship.  In any event, we interpret the language to include the spousal relationship established by a civil union because it ensures that the purposes of the polygamy statutes are carried out,in particular, avoiding the confusion and uncertainty discussed above."

Since polygamy is against public policy in Massachusetts and, as far as the record reflects,Todd has a legal spouse in Vermont, "his marriage to the defendant was void ab initio."  No need for a divorce.

Karen L. Loewy and Bennett H. Klein from Gay & Lesbian Advocates & Defenders, the New England LGBT public interest law firm, represented Richard, and Nicholas J. Plante and Russell Schwartz represented Todd.  Hobart F. Popick filed an amicus brief on behalf of a group of Vermont lawyers informing the court about Vermont civil unions and same-sex marriages. 

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