Marriage Hypothetical

Assume that Columbia, Deseret, and Utopia are all states within the United States of America. Now let’s say that the state of Columbia has a law on its books that says marriage licenses will not issue to first or second cousins and that the state of Columbia will not recognize any marriage license issued by any other jurisdiction to a couple that would be disqualified for a marriage license in Columbia.

At the same time, Deseret’s laws permit second cousins, but not first cousins to marry. Deseret criminalizes acts of incest, even between consenting adults, with an incestuous relationship being defined by reference to the marriage law. Thus, a sex act between first cousins is illegal incest in Deseret. However, Deseret law also provides that there will be no criminal prosecutions against a married couple for a consensual sex act.

Utopia’s marriage laws permits first cousins to marry, but only if 1) the couple has one common grandparent, and 2) at least one of the parties to be married is a resident of the state.

Andy is married to Beatrice, and gives birth to a daughter, Clarisse. He then divorces Beatrice and marries Daphne. Andy and Daphne have a son, Edward. Clarisse marries Frank, and they have a son, Goerge. Edward marries Heloise, and they have a daughter, Irene. Everybody lives in Deseret. Here’s our family tree:

So, George and Irene are first cousins, but they share only one common ancestor, who is Andy. They can get married in Utopia as long as at least one of them has established residency in Utopia. As it turns out, George and Irene live in Deseret, but they are right across the border from Utopia. And despite some leery glances from their families, they have been dating since they were both 16 years old and they want to get married.

So George buys a house across the border in Utopia, sleeps in that house 184 nights a year, registers to vote in Utopia, and pays property taxes on that house, which is the minimum required under Utopia law to establish residency in that state. Irene lives in Deseret full time. They both have jobs and pay income taxes in Deseret.

The day after George officially establishes Utopia residency, according to Utopian law. George and Irene apply for and are granted a Utopian marriage license. George immediately sells his house in Utopia, Irene sells her house in Deseret, and they move into George’s house, where they engage in consensual sex acts. George and Irene never return to Utopia again.

Are they married? Or could the state of Deseret prosecute them for incest?

Now, let’s say after the two have been together for ten years after Utopia issued the marriage license, Irene gets an offer of a really good job at the State University of Columbia, and so they move there. Irene signs up for benefits as part of her job and lists George as her husband. The benefits administrator, however, denies the application as to George, because he says that their marriage is not recognized in Columbia. He makes it very clear that the only reason he is denying George’s benefits is because Columbia law does not recognize the Utopia marriage license, because it was issued to people who are first cousins.

If George sues the state of Columbia for medical benefits, should he win?

Do you approve of Columbia’s law?

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.