Can we marry, even though we're both straight and male?

February 1, 2010 3:34 PM

Where gay marriage is legal, could I (a hetero male) "marry" my hetero buddy for legal/financial benefits, but we continue to date women outside the relationship?

I'm not trying to start a debate about whether this is right or wrong. I'd like to just understand if this is a legal maneuver in places where gay marriage has been made legal.

In other words, if I get a gay marriage, do I actually have to have, uh, sexual relations, with that person?

posted by anonymous to human relations (64 answers total)

If it's a straight marriage, do you have to have sexual relations with the person in order to get married? (Answer: no). Why would gay marriage be different? It's not like they put a camera in your bedroom and won't give you the marriage certificate if you don't consummate.

And if the next question is "doesn't this open up the potential for abuse? Like, why won't frat brothers marry each other in droves if gay marriage were legal?" .... Well, ask yourself why platonic male/female friends don't marry each other in droves, and you have your answer.
posted by forza at 3:37 PM on February 1, 2010 [11 favorites]

It's not like a green card marriage. No one from the gay police would ever come knocking at your door to interview you about your sex life.

But, you know, you could also perform the same maneuver with a female friend in a lot more places.
posted by mudpuppie at 3:40 PM on February 1, 2010 [5 favorites]

forza pretty much nailed it all.

yes, of course, in exactly the same way that male/female pairings can do now.

the only place it'll potentially be a problem is the same place it's a problem in hetero marriages now - green card weddings.
posted by nadawi at 3:40 PM on February 1, 2010

No, you don't. Just like if you straight-married some girl for legal/immigration/health insurance reasons and didn't have sex with her. Contrary to some anti-gay-marriage folks out there, procreation (or attempts at same) are not required.
posted by rtha at 3:41 PM on February 1, 2010

In other words, if I get a gay marriage, do I actually have to have, uh, sexual relations, with that person?

There are many heterosexual relationships in which sex is not involved.

So, uh, no.

But I don't understand why you would want to pursue this course of action.
posted by zizzle at 3:41 PM on February 1, 2010 [1 favorite]

Yes you can. I got married to a guy back in ... 1994 ... who I was not dating or otherwise involved with [we got involved later after getting married but that's sort of besides the point, I am no longer married]. I am a straight woman. This is and was a legal thing to do. This SHOULD be true for states with gay marriage, since marriage is marriage, but I am also somewhat curious about the answer here.

The very big caveat is that your marriage in a gay marriage state [such as Vermont] does not count as a marriage in other non-gay-marriage states [such as Rhode Island]. So the big deal is that if you and your buddy moved to a non-gay-marriage state, you would no longer receive the benefits of being married in your new state. This is weird and likely to be legally tested in the coming decade, but that is the legal reality at the moment. You and your husband would need to... I believe, file taxes jointly in your state [this varies from state to state] but could not file jointly at a federal level.

I think you would find that the legal/financial benefits you would receive as a result of being married would likely be outweighed by the difficulties that you would have dating women in this sort of configuration. Many of the benefits have to do with survivorship/inheritance, family sorts of things and federal taxes and benefits like social security which are not a big deal to people not in a committed long-term relationship.
posted by jessamyn at 3:43 PM on February 1, 2010 [4 favorites]

Not legal. That would be marriage fraud, best known for being the main problem with the "green card marriage" scenario.

(What makes it a fraudulent marriage isn't that you're not having sex with each other. It's that you, well, got married for fraudulent reasons.)
posted by ErikaB at 3:44 PM on February 1, 2010 [1 favorite]

I got married in California during the period of time that same-sex marriages were legal. As far as I was aware, they did not "check" to see if my spouse and I were fucking. Why would they? In the US, there is no enforceable law that forbids a married couple from fucking someone they're not married to, or conversly demands that a married couple procreate. In fact, it's relatively common and it's called "polyamory" if you're screwing your spouse at the same time, and "an arrangement" if you're not.

Anyway, back to the marriage ceremony. If I remember correctly, there were two legal requirements for our wedding: (1) "the parties shall declare, in the presence of the person solemnizing the marriage and necessary witnesses, that they take each other as husband and wife" (Basically, that whole "I Do" part, text being slightly different depending on what year you get hitched) (2) "By virtue of the authority vested in me by the state of California, I now pronounce you married under the laws of the State of California."
posted by muddgirl at 3:45 PM on February 1, 2010

ErikaB - marriage fraud is very narrowly defined. Note that the definition you linked to doesn't say anything about getting married for tax purposes.

I second jessamyn's assertion that the benefits are, in most cases, really only important in the long term. If both partners are equal-income or near-equal-income earners, there is actually a tax penalty.
posted by muddgirl at 3:47 PM on February 1, 2010 [1 favorite]

Not legal. That would be marriage fraud

Your link is all about immigration marriage fraud: "Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both." There's no sign that this person wants to do this to evade the immigration laws.
posted by grouse at 3:48 PM on February 1, 2010 [1 favorite]

And for what it's worth, I wasn't getting married for immigration purposes, I just thought it would be amusing. It was surprising to me how many random people it pissed off however. My husband and I both did date other people while we were married.
posted by jessamyn at 3:50 PM on February 1, 2010 [3 favorites]

The link I posted was mostly about immigration marriage fraud, which makes sense, because that's most of the cases of marriage fraud. But that doesn't mean that someone couldn't be prosecuted under those rules for marriage fraud for other reasons.

More to the point, there is a frothing cadre of gay marriage haters who would love nothing better than to make an example of this in the courts.

Anyway, I came back to say that there are really two questions here:

1. Is it illegal to get married under false pretenses? (Yes)

2. Will I get caught? (Depends)
posted by ErikaB at 3:53 PM on February 1, 2010

If it's a straight marriage, do you have to have sexual relations with the person in order to get married? (Answer: no).

No sex in a marriage would likely be considered prima facie evidence that you are committing fraud against the issuer of the benefits. You cannot do this in a hetero marriage either.
posted by Ironmouth at 3:56 PM on February 1, 2010

But there is no such thing as "marriage fraud" out of the context of immigration marriage fraud, because no law can dictate the reasons why people get married. If you want to get married for the usual reasons that's fine, or if you would like to get married because it's more convenient for whatever reason that's fine too. I don't see how that doesn't apply to gay marriage as well.
And yes, gay marriage haters will twist all this to their own purposes, but that's neither here not there.
posted by peacheater at 3:56 PM on February 1, 2010 [2 favorites]

The link I posted was mostly about immigration marriage fraud... But that doesn't mean that someone couldn't be prosecuted under those rules for marriage fraud for other reasons.

No, you cannot be prosecuted under that statute for other reasons. A necessary element of the crime is getting married "for the purpose of evading any provision of the immigration laws."

1. Is it illegal to get married under false pretenses? (Yes)

You have not provided any evidence that would support this assertion outside the narrow area of immigration law.
posted by grouse at 3:58 PM on February 1, 2010 [1 favorite]

But that doesn't mean that someone couldn't be prosecuted under those rules for marriage fraud for other reasons.

Not under the laws you linked.

8 U.S.C. § 1325(c) says:

Marriage fraud

Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.

18 U.S.C. § 1546 is all about fraudulent uses of permits, licenses and visas, but the statute also requires the specific intent to evade immigration laws.

Nothing in either of these statutes could suggest that sham marriages are illegal simply because the couple isn't actually in love or because they don't intend to have sex.
posted by Doublewhiskeycokenoice at 3:59 PM on February 1, 2010 [1 favorite]

There's no law against having an open relationship, but it sounds like you're not gay, not bi ("uh, sexual relations"), not actually in a sexual relationship with this person, and are doing this solely for the legal benefits. Correct me if I'm wrong. If I'm not, no, it's not legal, it's fraud.
posted by Dasein at 4:00 PM on February 1, 2010

Can anyone with google chops or law experience provide any evidence as to what Ironmouth and ErikaB are claiming? Because this seems like a pretty grave violation of privacy. I also don't recall "doin' it" being a requirement for, say, the Domestic Partnership Benefits forms that my company considered last year. All it said was "live together as partners". Is there a legal definition of this phrase that would make "not having sex" a case for fraud?
posted by muddgirl at 4:03 PM on February 1, 2010

Besides the possible fraud issue and aside from the question of whether you are trivializing something that is of great import to many other people, I would say that the status of gay marriage (in the US, at least) is in such flux that you would not be advised to enter into it unless you are invested enough to deal with of the possible legal dissolution of the union. Where will you be living in five, ten years? What happens if he/you dies?
posted by Morrigan at 4:10 PM on February 1, 2010 [1 favorite]

muddgirl, I believe it's a longstanding common law requirement that marriage be consummated - conjugality is what separates a marriage from some people just living together as roommates and asking the state or an insurer to pony up financial benefits.
posted by Dasein at 4:11 PM on February 1, 2010

What you gonna do when the company providing benefits cuts you off? Sue? You are defrauding them. Its gonna cost you thousands to sue and since almost every state in the union doesn't require cause for termination the company will fire you and you get zero benefits them. What are you gonna do? Claim they fired you because you were gay? This would not work.
posted by Ironmouth at 4:12 PM on February 1, 2010

I think you're overestimating the non-relationship-dependent benefits of legal marriage. Unless you're planning to make medical decisions for your buddy, adopt and co-parent his child, and inherit his property when he dies, you wouldn't really gain that much from marrying him. If he has really awesome health insurance through his employer, you've got one immediate, short-term benefit from your sham marriage; the rest of the benefits you'd gain are generally the things people want for their lives with their actual, non-sham life partners (i.e., not real benefits for the hetero guy in a sham gay marriage).
posted by Meg_Murry at 4:13 PM on February 1, 2010 [1 favorite]

muddgirl, the problem is that the OP is talking about deliberately marrying with fraudulent intent. That's different than a marriage that goes bad, or an open marriage, or a sexless marriage.

I don't see how "deliberately entering into a fraudulent marriage with the intent to defraud the IRS and various insurance companies" wouldn't be grounds for prosecution.

If y'all think I'm pulling the wrong statute, that's fine. IANAL obvy, but I was raised by them. I know how they think, all attack-y, with the slavering jaws and the fangs and the swift lunge for the fat pocketbook. Just think about the lawyers for the IRS, and for the insurance company he's going to defraud. (And shudder.)
posted by ErikaB at 4:18 PM on February 1, 2010

But there is no such thing as "marriage fraud" out of the context of immigration marriage fraud, because no law can dictate the reasons why people get married.

Getting benefits is defrauding the employer. A regular fraud statute would cover this.

J. if you got benefits would edit your answer and remove anything incriminating.
posted by Ironmouth at 4:20 PM on February 1, 2010

If y'all think I'm pulling the wrong statute, that's fine. IANAL obvy, but I was raised by them. I know how they think, all attack-y, with the slavering jaws and the fangs and the swift lunge for the fat pocketbook. Just think about the lawyers for the IRS, and for the insurance company he's going to defraud. (And shudder.)

This lawyer concurs.
posted by Ironmouth at 4:23 PM on February 1, 2010

As a practical matter (as compared to a theoretical legal issue), heterosexual couples are not routinely questioned about their conjugal status by insurers and the IRS. I can imagine it coming up if you didn't "look" married, perhaps including having separate residences, say. (But even then, we all know plenty of married couples who are living in different towns or even countries because of work issues, so that's not an obvious fraud marker, at all.) Immigration is where these things get probed (and family reunions, of course), but never at hospital admissions or your employer's benefit department.

I can imagine, though, that the same non-inquisitive courtesy may not get extended to gay couples, so your imaginary gay marriage might get a lot more scrutiny than a similar but coed "marriage."

And a purported marriage in which you both were highly public in your dating of other people is going to attract attention in a way that dating on the down-low will not.
posted by Forktine at 4:28 PM on February 1, 2010

Interesting. So if the OP said, "My friend who is a girl and I really love each other, but not in a let's-have-sex way. We're roommates, and she lost her job, and if we get married, I can put her on my insurance, which I'd do if I could put her on my insurance without getting married, but that's not allowed," that's fraud?

This probably doesn't apply in this case, but in San Francisco some years back, the city passed a law saying that business that had contracts with the city had to offer domestic partner benefits. Catholic Charities does a lot of business with the city (and a lot of gay people work for them), and they felt they couldn't offer gay-only domestic partner benefits (because of the Catholic Church's stand on gays, gay marriage, homosexuality, etc.). I may be slightly misremembering, but the outcome was that in San Francisco, at least, a domestic partner does not have to be someone you're shtupping. If you work for Catholic Charities and want to declare your adult child, or your dad, or the roommate you've had for ten years, or your boyfriend/girlfriend as your domestic partner, you can do that.

Oh, and regarding the tax thing - it won't be a problem with the feds, because as things stand, they won't consider you married. Filing your state taxes may be a different matter (it is here in California), but only if your state lets you get gay-married or recognizes such marriages performed in other jurisdictions.
posted by rtha at 4:34 PM on February 1, 2010 [1 favorite]

Will just point out, and I have nothing substantial to back this up, but I had some friends that were going to get married in a state that allowed it, but they decided it wasn't worth it because, due to the difference of marriage laws between state and federal laws, they would be hit big time by federal taxes, since their marriage would not be recognized by the federal government. Of course, your mileage may vary, but you may want to look into that.
posted by General Malaise at 4:41 PM on February 1, 2010

In Vermont as soon as gay marriage was legal [actually before, this happened back when civil unions were first created] domestic partner rules were changed at the state level. It used to be that any couple of any orientation could get domestic partner benefits from the state (I think? my memory is hazy it may have just been UVM or Burlington that did this), since for gay couples this was the only way they could get benefits for their partners. Once civil unions became legal, all domestic partners, gay and straight, had to get the legal piece-of-paper that said they were married or unionized.

I did not receive any benefits for my particular marriage [being wary of fraud, even in my stupid art project marriage] but it seems likely that flaunting your not-"really"-married status could get you sued by your employer, but again, it's an interesting wrinkle. Once I was married, all I had to do was *say* I was married to get whatever sort of husband/wife option there was [I think medical info over the phone was the only time I really did this, after my husband and I were no longer romantically involved but still married]. I think the same courtesy would possibly not be extended to gay couples.
posted by jessamyn at 4:41 PM on February 1, 2010

I guess my question is about "intent". If the OP and his friend are, indeed, living together as spouses, comingling their incomes and dealing with household issues as partners, with the sole exception being that they're dating outside the marriage, then why is this considered a fraudulent marriage? Doesn't every couple get married in order to obtain the legal and tax benefits of marriage? In my case, my "intent" for marrying my spouse was to get insurance and tax benefits. If those benefits weren't there, I would not have gotten married. The fact that we were fucking at the time seems immaterial to me.

Really, if there is such a thing as "marriage fraud outside of immigration issues", then there should be some case law, no? If a sexless marriage was cause for a company denying benefits, then there should be some civil trial, no?
posted by muddgirl at 4:46 PM on February 1, 2010 [3 favorites]

This is an interesting question. I ran a quick search through the court cases that I have access to, looking for "marriage w/6 fraud NOT immigration" and got 53 hits, but the synopses were all over the map. I didn't see any "A purports to marry B to get insurance benefits, but marriage is held to be fraudulent and A loses insurance benefits." (Of course, I didn't scrutinize each result carefully.)

However, unlike Ironmouth and ErikaB, I have a harder time seeing this as a fraud issue (outside the context of immigration). Leaving aside all the social baggage, I would describe marriage as a legal relationship that may be entered into by two consenting adults, that, once entered, affects other parties' rights and responsibilities. Of course, it imposes responsibilities on the entering parties also, and if the parties did not intend to fulfill those responsibilities, then I could buy the fraud argument. But the responsibilities do not include having sexual relations.

I would be very interested to see a reported case where two people (of any gender) got married, and an insurer of one of the parties was able to avoid paying a claim of the other party (the "spouse") on the basis that there was some irregularity in the marriage.
posted by spacewrench at 4:49 PM on February 1, 2010 [4 favorites]

As a datapoint on domestic partnership, my company offers domestic partnership benefits for employees who meet certain criteria (live together > 1 year, bank together, each others' life insurance beneficiaries) and sign a paper claiming our relationship to that effect. I used it with my now-husband for the seven months before we got married (since I could only change my status Jan 1) last year to get him on my insurance in the interim. I paid a (pre-tax) premium for the months we did so.
posted by bookdragoness at 5:00 PM on February 1, 2010

> You and your husband would need to... I believe, file taxes jointly in your state [this varies from state to state] but could not file jointly at a federal level.

This is correct, and a royal pain. I am required to file as married for my state taxes and single for my federal taxes. Make sure that you're getting the benefits you think you're getting before you do this. For example, I am covered on my spouse-for-life's health insurance, but we have to pay federal taxes on the value of that benefit. Sure beats not having health insurance, but is also more than her heterosexually married co-workers have to pay for the same thing.

In other words, yes it's legal, but be clear on what exactly the legal/financial benefits are before you do it.
posted by gingerbeer at 5:14 PM on February 1, 2010

Here is an example of marriage fraud. 33 sailors married Eastern European women fraudlently. The sailors were prosecuted for the theft of $500,000 in naval pay and benefits.

I would be very interested to see a reported case where two people (of any gender) got married, and an insurer of one of the parties was able to avoid paying a claim of the other party (the "spouse") on the basis that there was some irregularity in the marriage

Let me explain. If they deny you benefits, you have to sue them.

Really, if there is such a thing as "marriage fraud outside of immigration issues", then there should be some case law, no? If a sexless marriage was cause for a company denying benefits, then there should be some civil trial, no?

All they do is fire you. Your benefits cease immediately. This is a no-brainer. I'm an employment lawyer and this is exactly what I would advise a company to do if asked about this situation.

You can't even do this under domestic partnership benefits. Most plans have five requirements: (1) over 18; (2) neither party related by blood in a manner that would prohibit actual marriage between the two; (3) the partners must share a committed relationship; (4) the relationship must be exclusive; (5) the partners must be financially interdependent.

Can anyone with google chops or law experience provide any evidence as to what Ironmouth and ErikaB are claiming? Because this seems like a pretty grave violation of privacy.

I am an employment lawyer. There are few cases on this except for the one above.
posted by Ironmouth at 5:31 PM on February 1, 2010 [1 favorite]

He're's another situation where I think it would be illegal. Imagine a mobster who fraudlently marries his consigliere. Presumably the two could talk all day long on a wiretap regarding criminal matters and it would be shielded by the marital communications privilege.
posted by Ironmouth at 5:34 PM on February 1, 2010

In the US, there is no enforceable law that forbids a married couple from fucking someone they're not married to....

This is not true. Many states have such laws:

Last month, John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage. Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.

Commonwealth v. Stowell was a famous case out of Massachusetts. The above-cited excerpt involved a recent (successful) prosecution in Virginia.
posted by Conrad Cornelius o'Donald o'Dell at 5:43 PM on February 1, 2010 [2 favorites]

He're's another situation where I think it would be illegal. Imagine a mobster who fraudlently marries his consigliere. Presumably the two could talk all day long on a wiretap regarding criminal matters and it would be shielded by the marital communications privilege.

Even if NJ had passed same-sex marriage, it wouldn't help Tony Soprano:

Under the version of the spousal communications privilege applied in federal courts and in many state courts, there is a "joint participants" or "crime-fraud" exception, under which statements made between spouses that were intended to further a crime or fraud are not covered by the privilege. See, e.g,. State v. Baluch, 775 A.2d 141, 148 (N.J.Super.A.D. 2001).

On the flipside, there was the real-life case of Machine Gun McGurn, the man behind the St. Valentine's Day Massacre in Chicago in 1929:

Jack was arrested on suspicion of his involvement in the Massacre but the charges against him had to be dropped when his girlfriend, showgirl Louise Rolfe, swore that Jack had been with her at the time of the killings. The newspapers dubbed Rolfe "The Blonde Alibi". Her claims were later proved to be false and McGurn was charged with perjury. Louise Rolfe was to be forced to testify against McGurn in court, but Jack sidestepped that predicament by marrying Rolfe and, as his wife, she legally refused to testify.

posted by Conrad Cornelius o'Donald o'Dell at 5:54 PM on February 1, 2010

I remember hearing once that two of the guys from Sugarcubes had a legal "marriage of friendship". That is, they were both heterosexual but devoted enough to each others' long term well-being to take vows etc ...

Of course, that's Iceland.
posted by philip-random at 5:58 PM on February 1, 2010

I believe it's possible to have a marriage voided in California as 2210(d) fraud, as in In re Marriage of Ramirez and Llamas, if you're already having sex with someone else before you get married and have no intent of stopping once you're wed.
posted by fairytale of los angeles at 6:05 PM on February 1, 2010

[few comments removed - answers that aren't answering the OPs question or are fighting with everyone will go where they normally go, metatalk is your option, thanks]
posted by jessamyn at 6:08 PM on February 1, 2010

I have heard of 2 men doing this (in Canada) in order to get reduced tuition rates, as they were both going to the same university and the school had reduced tuition rates if both spouses were attending full-time simultaneously. Of course, it was a friend of a friend of a friend, and could very well have been an urban legend, but I've always wondered about the legality of it.

If asexuals can marry, why not friends? People marry for the legal and financial benefits all the time, so why not tuition rates? People divorce all the time when the marriage doesn't work for them anymore, why not divorce after university? I can't really see what particularly distinguishes this from other marriages.
posted by heatherann at 6:17 PM on February 1, 2010

That looks like a different kind of fraud, fairytale of los angeles, where the wife was suing for an annulment due to fraud. The state of California cannot, as far as I know, annull anyone's marriage without the consent of at least one of the parties. Didn't this factor in to the Prop 8 decision last year?

Many states have such laws

I was under the impression that Lawrence v. Texas would apply to such rulings, but I'm probably mistaken. Especially since, if both partners agree to allow "adultery", it would be difficult to prove that the actions were causing any sort of harm.
posted by muddgirl at 6:20 PM on February 1, 2010

Also, further reading the case linked to by fairytale of los angeles, it is indeed an immigration case, as is the case linked to by Ironmouth. The sailors were not entitled to the benefits because they were committing marriage fraud. They were committing marriage fraud because they got married solely for the purpose of immigration. They were not committing marriage fraud solely because they received benefits.
posted by muddgirl at 6:24 PM on February 1, 2010

I was under the impression that Lawrence v. Texas would apply to such rulings, but I'm probably mistaken.

No one knows - it hasn't been tested yet. This view may well be correct, but the SCOTUS is now a lot more conservative than it was when it decided Lawrence.
posted by Conrad Cornelius o'Donald o'Dell at 6:37 PM on February 1, 2010

Doesn't every couple get married in order to obtain the legal and tax benefits of marriage? In my case, my "intent" for marrying my spouse was to get insurance and tax benefits. If those benefits weren't there, I would not have gotten married. The fact that we were fucking at the time seems immaterial to me.

This is philosophically interesting, but when it comes to the law, surely what the immigration cases show is that the legal system recognizes the right of the state to apply a specific definition of what constitutes a committed relationship? Whether that's right or wrong, it's clearly a fact, and so it wouldn't be stunningly anomalous if this principle were applicable to benefits other than US residency.

I wonder (as a total non-expert) if the Lawrence issue is a distraction here insofar as it relates to sexual privacy, which is surely narrower than "committed relationship". The OP, after all, isn't saying he's deeply in love with his buddy, and wants to support him indefinitely in a loving partnership, just without happening to have sex.
posted by game warden to the events rhino at 6:44 PM on February 1, 2010

I have heard of 2 men doing this (in Canada) in order to get reduced tuition rates, as they were both going to the same university and the school had reduced tuition rates if both spouses were attending full-time simultaneously.

Probably an urban legend, if only because reduced or nil tuition at Canadian universities (as far as I have seen/heard) is for spouses and children of employees of the university, not... er, co-attendees. I knew several couples at university, none of whom were getting a tuition discount.

I just searched a few periodical databases and could find no mention of such a scenario either, not that it would necessarily have made the papers if true.
posted by onshi at 6:51 PM on February 1, 2010

What are the qualifications for a marriage to make it not fraud? In some societies, marrying for money and status were standard moves done openly and without shame.

Is it fraud if a beautiful woman marries a wealthy man for his money and he marries her just for her looks and neither of them really likes the other?
posted by y6t5r4e3w2q1 at 6:52 PM on February 1, 2010 [2 favorites]

You might consider what might happen down the line as (hopefully) gay marriage approaches the same full legal status as heterosexual marriage--for instance, when each of you has a legitimate legal claim on the other's property, or when one of you will not grant the other divorce for fear of losing benefits. I'm guessing 'but, your honor, it wasn't a real marriage' will not help you out so much.
posted by troybob at 6:58 PM on February 1, 2010

What we have here is an interesting intersection of some weird Venn diagram of interests; there is some certain and compelling way in which marriage is a contractual law issue - a free and open agreement between individuals, not in any way distinct from incorporation or LLP.

In fact, it is this very aspect of "gay" marriage that makes it somewhat immune from some of the culturally based opposition. Marriage is in our modern days a contractual agreement between two free individuals. If we adhere to separation of church and state, then all marriages are merely contractual agreements between two free individuals; if we take an additional step to check the gender of the parties involved, this seems to be a market-limiting action, and a gender discriminatory action.

Short version: modern marriage is strictly contractual; contracts are inherently gender neutral.
posted by yesster at 7:05 PM on February 1, 2010 [1 favorite]

surely what the immigration cases show is that the legal system recognizes the right of the state to apply a specific definition of what constitutes a committed relationship?

IANAL at all, and have never played one on TV or anywhere else, but: the law gives reasons for *not* recognizing a marriage as legitimate, which is a different thing - philosophically, if not legally - from saying "here are the things that make a marriage "real" in the bureaucratic/legal sense." That is, the law says "You may not marry just to obtain or grant legal immigrant status," (for instance), but it does not say "You can only be considered to be married if you love each other, live together, have children, and argue about money/sex/where to take a vacation."

So I guess my point is, the state doesn't "apply a specific definition of what constitutes a committed relations," but does define, in perhaps a limited fashion, what a committed relationship is *not.*

So interesting.
posted by rtha at 7:11 PM on February 1, 2010

Under the version of the spousal communications privilege applied in federal courts and in many state courts, there is a "joint participants" or "crime-fraud" exception, under which statements made between spouses that were intended to further a crime or fraud are not covered by the privilege. See, e.g,. State v. Baluch, 775 A.2d 141, 148 (N.J.Super.A.D. 2001).

Doh! I forgot the crime-fraud exception! I'd like to apologize to my crim pro prof!
posted by Ironmouth at 7:34 PM on February 1, 2010

If we adhere to separation of church and state, then all marriages are merely contractual agreements between two free individuals; if we take an additional step to check the gender of the parties involved, this seems to be a market-limiting action, and a gender discriminatory action.

Actually, no. Marriage is not a contract. It is a state-sanctioned relationship between two individuals. There can be no action for breach of contract in a marriage. It may only be dissovled by divorce, which is not a breach action. Therefore it the contract analysis would not be appropriate to analyze this particular question.
posted by Ironmouth at 7:39 PM on February 1, 2010

Also, further reading the case linked to by fairytale of los angeles, it is indeed an immigration case, as is the case linked to by Ironmouth. The sailors were not entitled to the benefits because they were committing marriage fraud. They were committing marriage fraud because they got married solely for the purpose of immigration. They were not committing marriage fraud solely because they received benefits.

Muddgirl, your analysis is incorrect. The Eastern European women were prosecuted for immigration fraud. The sailors were prosecuted on top of that for stealing the benefits. Even though immigration was involved, there was another statute that was violated. (likely from the Code of Military Justice. They were prosecuted for non-immigration marriage fraud on top of the immigration marriage fraud. The fact that they were committing the immigration offense isn't necessary to the legal analysis of the question of whether they violated the other statute.

However, from a factual standpoint it is obviously important because it shows the factual basis of what they did.
posted by Ironmouth at 7:45 PM on February 1, 2010

But what about annulment? I know wikipedia's not a lawyer, but it sure makes it sound like NY state (at least) treats marriage as a contract (in some instances).
posted by rtha at 7:47 PM on February 1, 2010

Two friends in Ann Arbor did this so that one of them could go on tour with his freak folk band and keep health benefits. They were both bi, dating other people and not sleeping with each other. The ceremony was delightful; we had PBR.
posted by klangklangston at 8:20 PM on February 1, 2010 [1 favorite]

There was actually an episode of Boston Legal about this very thing.
posted by you're a kitty! at 8:20 PM on February 1, 2010

Two friends in Ann Arbor did this so that one of them could go on tour with his freak folk band and keep health benefits. They were both bi, dating other people and not sleeping with each other. The ceremony was delightful; we had PBR.

Your friends committed fraud that was not discovered by the employer or the insurance company. They are also hipsters.

More military marriage fraud.
posted by Ironmouth at 8:28 PM on February 1, 2010 [2 favorites]

While Ramirez involves immigration fraud, the grounds for nullity due to 2210(d) marital fraud in CA are actually pretty sweeping, covering stuff like incest (not that the OP is going to marry his brother), bigamy (I don't think the OP is going to have multiple husbands), and, yes, concealment of a prior sexual relationship with no intent of terminating it regardless of the immigration status involved (don't get a girlfriend before you marry your pal).

I do cop to it being part of a divorce-related proceeding and not something judges go around just doing wantonly, yes.

Also, intent not to have sexual relations can be used to claim fraud, so if you marry your friend and don't want to fuck him, make sure he's not going to get upset with you in any major way later and claim that you defrauded him into not fucking.
posted by fairytale of los angeles at 8:43 PM on February 1, 2010

The other thing is that insurance companies and employers hire companies to do what is known as a "benefits audit" to catch people like this.
posted by Ironmouth at 9:52 PM on February 1, 2010

You also may want to look at this, for reference: Non-Gay Men with Girlfriends get Married to Each Other
posted by decathecting at 8:47 AM on February 2, 2010

I believe there was a documentary about this very subject.
posted by AtomicBee at 10:04 AM on February 2, 2010

rtha: "But what about annulment?"

That tends to support the existence of "marriage fraud," since the grounds for annulment in the U.S. are typically fraud in the making of the marriage (one partner lies to another) or failure to consummate the marriage, in either case rendering the marriage void. (Nullity is slightly different -- that's when the marriage could never have been valid and one or both partners lied to the state about it, or were mistaken. Some states lump the two together, some states consider them differently, but it's different sides of the same coin.)

In any case, the existence of annulment (and nullity) tends to support the idea that there are certain conditions for marriage that must be met and it is NOT "merely" a contract.

I'm seeing a lot in this thread of people saying, "But I've seen people do X and not get caught ..." or "but that's not the way MY/my friends'/my parents' marriage works ..." And that's true. And perhaps, philosophically and ethically, anyone should be able to form a marriage contract with anyone they wish. And goodness knows people enter into marriages for a huge variety of reasons, some of which we may find laudable and some of which we may find disturbing. However, that is not the state of the LAW, which is what the question was.

Can you enter into a marriage (gay or straight) with a good friend while continuing to see other people on the side? Sure. Your chances of getting "caught" are slim -- right up until you start seeking benefits from either the state or from a corporation that only go to married people. Then they increase slightly. If the supported partner becomes very ill, you can bet the health insurer will be looking for ways out of that contract, and at that point I think your chances of getting "caught" shoot through the roof.

And as someone else pointed out upthread, the other way you can get (metaphorically) screwed is if your marriage-mate decides, for whatever reason, to contest your later divorce -- to get your money or stuff, to stay on your benefits, whatever. At that point, you're either stuck giving money to someone you never wanted to be "married" to in the first place and never had a real marriage with, or admitting that the marriage was fraudulent when formed.

In any case, it seems like a bad idea, because accusations of fraud -- criminal or civil, proven or not -- are extremely serious, and in some cases can bar you from future employment or other future benefits.
posted by Eyebrows McGee at 10:21 AM on February 2, 2010

Dasein writes "I believe it's a longstanding common law requirement that marriage be consummated - conjugality is what separates a marriage from some people just living together as roommates and asking the state or an insurer to pony up financial benefits."

Long standing or not it seems like something that isn't any longer enforceable. No one is going to prevent a couple with with advanced ALS or a couple of quadriplegics from getting married on the basis that their marriage hasn't or won't be consummated. Be interesting to see if an insurance company has successfully tried though, especially if you all get that prohibition on pre-existing implemented.
posted by Mitheral at 11:49 AM on February 2, 2010

likely from the Code of Military Justice

Which may not apply in this particular case.

I see what you are arguing, Ironmouth, and this discussion has been very enlightening. I think the general take-away is that there probably aren't any federal or state penalties for doing something like this (unless one is employed by the federal or state government), but it's likely that there could be penalties from an insurance company or employer. Although I'd love to see this trial, it's likely that both parties would seek to avoid publicity of this type of matter.

It's also sort of a moot point, since there is currently a huge federal penalty for gay couples who receive employee benefits. It's more likely that a straight couple would go in for a plan like this, but culturally a straight couple is more likely to get away with it.
posted by muddgirl at 1:19 PM on February 2, 2010