Gay Bigamists of New England

The more useful but less enticing headline: Massachusetts court treats out-of-state civil unions as equivalent to marriage, for purposes of applying the state ban on bigamy. From today’s decision of Massachusetts’ highest court, Elia-Warnken v. Elia (Mass. July 26, 2012):

We transferred this case from the Appeals Court to consider a question reported by a judge in the Probate and Family Court: “Whether or not a Vermont civil union must be dissolved before either party to that civil union can enter into a valid marriage in Massachusetts to a third party.” The matter came before the judge in the course of divorce proceedings between the plaintiff and the defendant, a same-sex couple who had been married in Massachusetts but where the plaintiff had earlier entered into a civil union in Vermont. Because we recognize the plaintiff’s Vermont civil union as the equivalent of marriage in the Commonwealth, we answer the reported question in the affirmative.

Facts. The undisputed facts, as reported by the judge and contained in the record, are as follows. On April 19, 2003, the plaintiff, Todd J. Elia–Warnken, entered into a same-sex civil union in the State of Vermont. His Vermont civil union has never been dissolved by any civil authority.FN2 Nevertheless, on October 17, 2005, the plaintiff and the defendant, Richard A. Elia, were married in Worcester.

In April, 2009, the plaintiff filed for divorce from the defendant. In his answer, filed on January 12, 2010, the defendant stated that he was married to the plaintiff and counterclaimed for a divorce. At some point, the defendant apparently discovered that the plaintiff had an undissolved civil union. In March, 2010, the defendant moved to dismiss the complaint and counterclaim for divorce on the ground that his Massachusetts marriage was void….

We define marriage as “the voluntary union of two persons as spouses, to the exclusion of all others.” This is the relationship established by Vermont civil unions …. By that definition alone, a Vermont civil union is the functional equivalent of a marriage….

Because we conclude that a Vermont civil union is the equivalent of marriage, the issue is whether, pursuant to the polygamy statutes, the defendant’s marriage to the plaintiff was void ab initio. The plaintiff argues that the plain language of the statute states that a marriage is void only if one of the parties has a “husband” or “wife.” He asserts that, because he did not have a husband or wife at the time he married the defendant, the statutes do not apply to his situation. See G.L. c. 207, § 4 (under Massachusetts law marriage is not valid if “either party … has a former wife or husband living”).

We are not persuaded…. [W]e 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. Under Massachusetts law, polygamy is against public policy, and there is no good faith exception. The plaintiff has a spouse in Vermont; therefore, his marriage to the defendant was void ab initio.