California Court Rejects Lebanese Bigamous Marriage

From In re Marriage of Elali & Marchoud, decided yesterday by the California Court of Appeal (written by Justice Carol Codrington and joined by Presiding Justice Manuel Ramirez and Justice Douglas Miller):

While Mr. Samir Elali was married to Ms. Angeles Elali and resided with her in California, Samir married Ms. Mayssa Marchoud in Lebanon. {Samir[ testified] that he married Angeles in 1987, and had remained married to her for almost 35 years, including when he married Mayssa in Lebanon in 2012.} After Samir attempted to terminate the Lebanese marriage, Mayssa filed a petition in California for spousal support without dissolution against Samir. The trial court ruled the Lebanese marriage was bigamous and therefore void under Family Code section 2201, subdivision (a)…. We … conclude the trial court did not err in ruling the bigamous Lebanese marriage was void under section 2201(a)[:]

[A subsequent marriage contracted by a person during the life of his or her former spouse, with a person other than the former spouse, is illegal and void, unless:

(1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.

(2) The former spouse (A) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (B) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.] …

Under [Family Code] section 308, "[a] marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California." … Mayssa argues that although Samir had two simultaneous marriages, the second marriage in Lebanon was valid because Lebanese law permits bigamy….

McDonald v. McDonald (Cal. 1936) and Brandt v. Brandt (Cal. App. 1939) state that in California, a bigamous marriage is against public policy and therefore invalid…. Penal Code section 281 [also] demonstrates that in California a bigamous marriage is against public policy and therefore application of section 2201(a) to such a bigamous marriage is proper even if the bigamous foreign marriage is valid under the law of the situs of the marriage. Penal Code section 281 states that "Every person having a spouse living, who marries … is guilty of bigamy." Penal Code section 281 further states in relevant part that, "[u]pon a trial for bigamy, … when the second marriage … took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge."

And the court concludes that Estate of Bir (Cal. App. 1948), which did consider an Indian polygamous marriage in deciding how property was to be distributed on death in the absence of will, was limited to such intestate succession controversy:

In Bir, the court recognized under principles of comity, the decedent's marriage entered in India, where the laws of India permitted bigamous marriages. Bir is inapposite because the court's recognition of the bigamous foreign marriage was solely in the context of a petition to determine intestate succession by the decedent's two wives, who were residents of India, not California.

The court in Wong v. Tenneco, Inc. (Cal. 1985) explained that the public policy exception to the comity doctrine "precludes application of a foreign state's law where to do so would violate California's public policy. [Citations.] The standard, however, is not simply that the law is contrary to our public policy, but that it is so offensive to our public policy as to be 'prejudicial to recognized standards of morality and to the general interests of the citizens ….' [Citations.]" Even when a foreign law offends public policy, "it may still be applied in a limited context where the potential harm is minimal," as the court found in Bir [in the context of intestate succession only, India's law permits polygamy to be applied under principles of comity].

The court in Bir stated that "Where only the question of descent of property is involved, 'public policy' is not affected…. True, there are cases holding invalid polygamous marriages entered into in places where such marriages are legal, but in each such case found, all the parties were living and no question of succession to property was considered…. 'Public policy' would not be affected by dividing the money equally between the two wives, particularly since there is no contest between them and they are the only interested parties."

In the instant case, unlike in Bir, the parties to the bigamous marriage are both living, there is a dispute over their marital rights to support and the division of property under the California Family Code. Section 2201(a), Penal Code section 281, and case law supports the determination that bigamous marriages in California are against public policy, illegal, and thus void. We therefore conclude the trial court properly ruled that the Lebanese bigamous marriage was void under section 2201(a)….

Comments

[jimc5499]

Yet California supports the genital mutilation of women in the name of religion.

[Eugene Volokh]

Thanks -- can you elaborate on the particular law or incident you have in mind?

[jimc5499]

I will, but, I am at work right now and the terms that I would have to use for the search are something that I don't want to use on my company computer.

[Frank Drackman]

My genitals were mutilated shortly after birth.
It's called "Circumcision"

[Krychek_2]

And if circumcision were being introduced today for the very first time, its practitioners would all be jailed for child abuse. It's a remnant of ancient superstition that managed to survive. Yay religion.

[DaivdBehar]

KryKry. Stop being such a Jew hater. Endorsed by Pediatrics. They are not Semitic, nor Islamophobic.

https://publications.aap.org/pediatrics/article/130/3/e756/30225/Male-Circumcision?autologincheck=redirected

[ReaderY]

No, it’s very modern. Gender affirmation surgrry is a way for people to affirm their gender identities.

I’m inclined to agree with Alito on this one.

If characterizing transgender gender affirmation surgery as “genital mutilation” is bigotry, it would seem to follow that if we catch people trying to characterize cisgender gender affirmation surgery as “genital mutilation,” that’s a pretty good clue that’s also bigotry. And if cisgender gender affirmation surgery is done for religious purposes, then characterizing it as “genital mutilation” is anti-religious bigotry.

Either sex.

[y81]

Perhaps one of the Conspirators can explain why, under the principles of natural right and justice, gays win and Muslims lose? Or elucidate which marriages are "prejudicial to recognized standards or morality"?

[DaivdBehar]

The lawyer is racist and Islamophobic. If someone wants 4 bosses instead of one, may Allah preserve him.

[Ed Grinberg]

If someone wants 4 bosses instead of one, may Allah preserve him.

Funny.
(married 17 years)

[DaivdBehar]

How dare the court impose its colonialist superstition on consenting adults. But this is the sliding on the slippery slope caused by the arrogant, idiotic Supreme Court, especially that Ivy indoctrinated nincompoop, Kennedy.

Next? Mammalian pets.

Next? Sex robots, best girlfriend ever. Also gets verklempt and is very devoted.

Next? Marriage to a bacterium.

Purpose? Save the moribund Family Law business after it destroyed the American Family.

[Don Nico]

Amen!

[Bored Lawyer]

Because the law in this area is whatever five justices want it to be.

[BravoCharlieDelta]

Government/gay marriages are about the State assigning dignity to people Why don't these people deserve State assigned dignity?

[Krychek_2]

I'm inclined to think that if someone is foolish enough to marry more than one person, let him. One is reminded of the old joke that the penalty for bigamy is two mothers in law.

But, if one wants to distinguish bigamous marriages, there are grounds to do so. Bigamous marriages are more likely to produce children on the public dole since few men can support multiple families. Bigamous marriages are more likely to result in domestic violence since the sister wives only rarely get along with each other. (I remember as a tourist in Morocco being told by my guide that living in a household with multiple women was indistinguishable from living in Iraq.) Bigamous marriages are based on sexist presuppositions, and therefore violate public policy.

All that said, I still think people have the right to make their own mistakes. But there are legitimate distinctions between bigamous marriages and gay marriages.

[Illocust]

Gay and lesbian marriage are less likely to produce offspring, which are one of the primary reasons for recognizing marriages by governments. Lesbian marriages are also far more likely to result in domestic abuse than straight marriages. So if equality under the law can overlook those government interests, then the same should apply to the government interests in the case of bigamy.

[Krychek_2]

True, gay and lesbian couples are more likely to adopt children brought into the world by irresponsible heterosexuals. And surely those children benefit from having married parents.

[Illocust]

And domestic abuse, which is far and beyond more likely to occur in Lesbian marriages?

My point of course being, that legitimate government interests have already been ruled to be insufficient to prevent equality under the law for marriage, and the arguement that you have the same right to marry the opposite sex as anyone else has also been ruled non-relevant.

[Krychek_2]

It is not constitutionally possible to ban lesbian marriage without also banning gay male marriage; it's both or neither. So the fact that one of those two groups has a higher domestic violence rate isn't relevant to the practical realities.

[Don Nico]

"domestic abuse, which is far and beyond more likely to occur in Lesbian marriages?"
An obvious point for a racist to make

[y81]

You are saying that public policy can be legitimately based on unsupported stereotypes about Muslim domestic life, but not on unsupported stereotypes about gay or lesbian domestic life? You have done no more than restate the question.

[Krychek_2]

Which unsupported stereotypes are you referring to? Most males can't financially support more than one family. Polygamous marriages do have more domestic violence. And what's the argument that polygamous marriages aren't based on misogynistic premises?

[y81]

Most families have two earners, so the financial ability of most males all by themselves isn't relevant. And females have lower earnings than males, and so should not, by your logic, be allowed to marry each other and attempt to raise families on inadequate incomes. On your other unsupported claim, there are no polygamous marriages in the U.S., so you have no valid data at all to support a comparison on domestic violence, just stereotypes about how horrible foreigners are.

[Krychek_2]

Most families that have two earners are not the type of conservative, traditional Muslim families likely to engage in polygamous marriage. (By the way, I lived in the Middle East for three years where most of my business and social interactions were with locals; while that does not make me an expert, I do have a basic working knowledge of traditional Islamic domestic relations.)

As for domestic violence, I was going to go to Youtube to get you links for some instructional videos from the imams on the proper way to beat your wife, but there were too many to choose from. So just go to youtube and search "muslim beat your wife". Title include:

Qatari sociologist's guide on how Muslim men should beat their wives

Ruling on beating one's wife in Islam

Mullah defends "beat your wives lightly" advice

Muslim women are lucky to be beaten

A Qatari man teaches Muslims how to beat your wife

These are not propaganda videos put out by anti-Muslim hate groups; these are teaching sessions by mullahs and imams.

Which goes back to my original third point: Polygamous marriages are almost inherently misogynistic. It's no accident that the cultures that have them also tend to be cultures that brutalize women and treat them as property. Some world views just sort of go together.

[Frank Drackman]

Always wondered what Samir did after working at Initech.

[vaadu]

Consenting adults?
Not the government's business

[ReaderY]

One of the functions of anti-bigamy laws is to preserve availability of marriage partners. If powerful men marry multiple women, then less powerful men won’t have any.

It’s an analog of sex discrimination laws. If white people hire only whites, and they’re the ones hiring, then black people wonmt have jobs.

Equal distribution of power and preference would arguably render such laws unnecessary. If blacks hire only blacks and are just as likely to hire as whites, no imbalance will result, and except for purely moral “it’s wrong!” type objections, nobody would notice the difference. Similarly, if biandry is as common as bigamy, there will be no imbalance.

I continue to point out that laws against gay marriage serve similar functions. If there are more male-male marriages than female-female, there will be an imbalance. Laws against gay marriage would address that imbalance in exactly the same way as laws against bigamy and against workplace discrimination.

At the same time, the arguments against these laws don’t strike me as especially different. If same-sex attraction is not likely to be much influenced by social pressures and laws, why should we think that an attraction to multiple partners will be much influenced by social pressures and laws?

[ReaderY]

I think rational basis applies to all of them.

Racial discrimination isn’t absolutely wrong. A hypothetical society could be imagined where it causes no harm. If all sides have equal power and preferences are proportionate, then white people hiring white people get balanced by black people hiring black people, nobody is out of a job, and nobody has need to notice a problem. Similarly, if polyandry and polygamy are balanced, nobody is out of a spouse. And the same with gau marriage.

But balance, or anything like exact balance, is unusual. In all three cases, legislatures can prohibit the practice if they merely suspect an imbalance is plausible. It seems to me that the rational basis is the same for all three. I think that for constitutional purposes, all three are the same. Differentiating among the three reflect ideological values. Constitutional analysis ought to be neutral.

“Morals” laws often involve situations where if one person does it, a single act makes no difference. But if everybody does it or it’s done in an imbalanced way, it can be a real problem.

Libertarians have a real problem with these concepts. The idea that the appropriateness of an act can be relative to society seems a difficult concept to grasp. But lots of things depend on context, not just on what you do but what other people around you do. It’s easy to understand why you can have a loud party or a shooting range on uour 1000 acre farm, but not in your studio apartment. Driving on the wrong side of the road isn’t inherently wrong; picking a side is arbitrary and the British picked the other side.

This isn’t really all that different.