Key point 3-04 . All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.
The Nebraska Supreme Court ruled that where a Nebraska marriage license was obtained, but one of the participants was already legally married to someone else, a bigamy prosecution was still proper.
Background
On June 29, 2015, a man (the “defendant”) completed a marriage worksheet at a local county clerk’s office in Nebraska and paid the requisite fee. A clerk watched the defendant and “Wife 1” sign a Nebraska marriage license and notarized their signatures. On July 4, 2015, the defendant’s sister, an ordained minister, performed a wedding ceremony for the couple in Texas.
The defendant’s sister signed a “marriage certificate,” but she did not sign or return the Nebraska marriage license. The defendant’s sister claimed that she later threw away the marriage license at the defendant’s request. The couple returned to Nebraska and resided together. Over the next few weeks, Wife 1 contacted the clerk on several occasions to inquire whether the marriage license had been returned.
Wife 1 informed the clerk that, although she was able to change her surname with the Social Security Administration using the marriage certificate, she wanted a certified copy of the marriage license in order to change her information with the Nebraska Department of Motor Vehicles.
During this timeframe, the couple had an “on again–off again relationship.” At one point, the defendant told the clerk that he did not want to be married and inquired how to “prevent the marriage from going through.” The clerk responded that “if they had already filled out the documentation and had the ceremony, they were married.”
In late 2016 or early 2017, the clerk notified the records administrator of the county clerk’s office that the marriage license between the defendant and Wife 1 had not been filed.
When the records administrator determined that no marriage license was filed for the 2015 marriage, she called the defendant’s sister and informed her that a replacement marriage license would be sent, which needed to be signed and returned. The defendant and Wife 1 returned to the county clerk’s office, signed a copy of the replacement marriage license, and had the clerk notarize their signatures.
Subsequently, the marriage license was returned and filed with the county clerk’s office in January 2017. The license contained signatures of the defendant’s sister and two witnesses. It stated that the defendant and Wife 1 were married on July 4, 2015, in Nebraska.
In May 2018, the defendant moved out of the residence he shared with Wife 1. Screenshots of text messages between them, some of which were sent around this time, showed that the defendant referred to himself as Wife 1’s husband and to her as his wife.
On November 5, 2018, the clerk received a marriage worksheet for the defendant and another woman (“Wife 2”). On November 16, 2018, a signed marriage license was filed with the county clerk’s office showing that the defendant married Wife 2 on November 15, 2018.
In 2019, Wife 1 attempted to file her income taxes as married filing jointly with the defendant.
The Internal Revenue Service notified her that she could not do so because the defendant had filed income taxes as married filing jointly with Wife 2. Wife 1 notified the police department, and an investigation uncovered two marriage certificates on file at the county clerk’s office but no intervening divorce.
When a police officer spoke with the defendant, he said that he and Wife 1 were going to get married but never did.
The defendant was convicted of bigamy
The state charged the defendant with bigamy, contending that when he married Wife 2 he was already married to Wife 1. Defense counsel argued that the defendant’s marriage to Wife 1 was not a valid marriage because it did not comply with statutes in Nebraska or Texas.
The trial court noted that there were only two requirements for a valid marriage under Nebraska law: a marriage license and solemnization of the marriage by a person authorized by law to solemnize marriages.
The court concluded that “the evidence unequivocally validated” the defendant’s marriage to Wife 1, making him guilty of bigamy. He was sentenced to 30 days in jail. He appealed his conviction directly to the Nebraska Supreme Court.
Court: Marriage records support bigamy charge
The supreme court began its opinion by quoting the following definition of bigamy under Nebraska law:
If any married person, having a husband or wife living, shall marry any other person, he shall be deemed guilty of bigamy, unless … it appears that at the time of the subsequent marriage:
(a) The accused reasonably believes that the prior spouse is dead; or
(b) The prior spouse had been continually absent for a period of five years during which the accused did not know the prior spouse to be alive; or
(c) The accused reasonably believed that he was legally eligible to remarry.
The court explained the importance of banning bigamy:
“Bigamy ‘destroys the happiness of families and social order; it places the stigma of illegitimacy upon innocent children; it complicates and prevents the regular descent of property, and deprives the unoffending of their rightful inheritance.’”
The defendant argued before the supreme court that his first marriage was invalid since its solemnization occurred in Texas rather than Nebraska. His argument primarily rested upon a Nebraska statute that states, “Prior to the solemnization of any marriage in this state, a license for that purpose shall be obtained from a county clerk in the State of Nebraska.” Reading this language together, he claimed “that for a marriage based upon a Nebraska license to be valid, it must be solemnized in Nebraska—in other words, the solemnization in Texas rendered his marriage invalid in Nebraska.” In rejecting this argument, the court observed:
Marriage as a social institution is favored by public policy, and the law raises a strong presumption in favor of its legality. …
Here, the marriage ceremony occurred in Texas. Although one Texas statute requires a Texas marriage license, another provides that the validity of a marriage is generally not affected by any fraud, mistake, or illegality that occurred in obtaining the marriage license. And Texas has declared that its policy is “to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.”
The court concluded:
[T]here are two essential elements of bigamy. Under the circumstances here, the State had to prove beyond a reasonable doubt (1) that the defendant was a “married person” with a wife living and (2) that he married another person.
The State proved the essential elements of bigamy. It adduced two documents titled “License and Certificate of Marriage” from the Nebraska Department of Health and Human Services’ vital records office, each showing that the ceremony occurred in [Nebraska]. One was filed in January 2017 in the names of [the defendant and Wife 1] and showed a July 2015 ceremony date and the other was filed in November 2018 in the names of [the defendant and Wife 2]. These records are presumptive evidence of the fact of such marriages. The State produced evidence that there was no record the defendant divorced [Wife 1] prior to his marriage to [Wife 2]. …
[The defendant and Wife 1] acquired a marriage license and participated in a wedding ceremony performed by [the defendant’s] sister, an ordained minister. After those events, when the defendant inquired as to how to “prevent the marriage from going through,” he was told by an employee at the [county] clerk’s office that he was married if he already filled out the marriage license and had the ceremony. The evidence showed that after having been informed of the effect of obtaining a license and participating in a marriage ceremony, [the defendant] referred to [Wife 1] as his wife. When, over [one] year after the ceremony, it was discovered that the marriage license had not been filed, the defendant returned to the [county] clerk’s office and signed a replacement license, which was also signed by [his] sister and two witnesses. The evidence supports [the defendant’s] conviction for bigamy.
What this means for churches
This case illustrates two important points.
First, bigamy prosecutions are not a thing of the past. They are a very real threat that can result in incarceration. Ministers can play an invaluable role in minimizing this risk by requiring engaged couples to present a valid and unexpired marriage license before the date of a wedding.
Second, under the laws of most states, procedural defects associated with a marriage ceremony do not invalidate the legal validity of the marriage. Rather, the consequence for such defects is criminal sanctions on the officiating minister. As a result, it is imperative for ministers to be familiar with the legal requirements that pertain to marriages in their state. This is especially true for new ministers, and for ministers who have recently moved to another state.
State v. Johnson, 967 N.W.2d 242 (Neb. 2021)
