Virginia Attorney General Issues Controversial Legal Opinion

[mahatmakanejeeves]

It's Ken Cuccinelli, so I thought at first that this was inevitably directed at teh gays. Now I'm not so sure, as no clerk in Virginia could issue a license to a same sex couple in the first place.

Attorney General Issues Controversial Legal Opinion

Andrea McCarren, 3 days ago

ALEXANDRIA, Va. (WUSA) -- Virginia's Attorney General Ken Cuccinelli has issued yet another controversial opinion, this time about marriage in the Commonwealth. It's left local married couples wondering if they're now living in sin!

A legal opinion by Cuccinelli launched the controversy. A court clerk in Prince William County asked the Attorney General about a couple with a Virginia marriage license whose ceremony was performed by someone authorized in Virginia, but they held their wedding in Bethesda, Maryland. The Attorney General said marriages taking place outside of Virginia are not valid in the Commonwealth.

In a legal opinion written in May, the Attorney General argued that under the law, marriages performed with a Virginia license are only valid if the ceremony takes place in the Commonwealth.
....

"Maybe this is to curb some of the gay marriages that have been going on outside, and I just don't think that's a right you take away from everybody," said Chris Meyer.

Others questioned the motivation too.

"That's interesting. I wonder what the true purpose of that initiative would be," said Marty Giudice, married 26 years.

"Quite honestly, it doesn't make sense because what's recognized in many states should also be recognized here," said Laurie Giudice.

[blondeatlast]

1. What a maroon! That's gonna piss off a lot of good Christians who went to Hawaii

for nuptials.

Quick; I gotta go to CostCo for some...:popcorn:

:rofl:

[onenote]

32. if you go to hawaii to get married, you better get a hawaii marriage license

For any person to lawfully marry in the State of Hawaii, a license for that purpose must be obtained from an authorized agent (HRS §572-1.7).

[joeybee12]

2. Wow, an attorney general who doesn't understand the law!

That's what you get when you vote Repuke!

[hayu_lol]

3. Ummm...seems to me that the guy is probably right in that...

almost all states require a marriage license before anyone can marry anyone. If the participants choose to leave the state of issue, a Virginia license would not be valid in another state.

A California license would not be valid in Nevada and so on.

A matter of correct record and of course, revenue from the license fee.

[MyNameGoesHere]

5. I think that if we had a real Judicial system

the whole current method of getting married would be declared unconstitutional. I mean here is my experience with it. I applied for the license and did not want a church ceremony, therefore it had to be a judge. Why? His ceremony was not much different than the church. Why can't a clerk just do it on the spot? Why do I have to go to a ceremony period? Can't i just raise my hand and state that I am sane and doing it without pretexts and be done with it? I tell you why i think it is like that, the puritans never want to give up on trying to shove religion down peoples throats.

[joeybee12]

6. Not really, because Maryland accepted the Virginai license...most states

will...there's precedence for this having been allowed for quite some time. Most states are reciprocal.

[onenote]

16. where does it say maryland "accepted" the virginia license?

In fact, under Maryland law, weddings have to be performed not only pursuant to a maryland-issued marriage license, but in the specific county where the license was issued. Maryland didn't "accept" the Virginia license in this case because Maryland wasn't formally involved in the wedding other than the fact that it took place there without a license. The person performing the ceremony was doing so pursuant to authority granted by Virginia.

I'm not sure why this ruling is all that "controversial" -- for example, if the marriage license had been issued in DC and the wedding performed in Maryland, the result would be the same -- the wedding would not be valid in either DC or Maryland because it wasn't valid where it was performed.

[msanthrope]

14. No. You need a specific jurisdictional element within the law

itself that would limit it--as in "marriage only valid if performed in state boundaries."

This makes it very difficult for people who live in Northern Virginia--they live there, but use wedding venues in DC, Maryland, etc....

[onenote]

17. its not difficult for someone from Northern Virginia to get married in DC

You just need to get a DC marriage license -- there is no requirement in DC that you be a resident of DC to get a DC marriage license. Its what I did -- lived in VA, got a DC license, got married in DC.

This really strikes me as much ado about next to nothing. To the best of my knowledge, the law in most states requires you to have a marriage license issued in that state to get married in that state.

[msanthrope]

21. Respectfully, I think you missed my point.

Without a specific jurisdictional element to the VA law--and there is none--plenty of couples may have done what I suggested--gone to their VA county, gotten a license, and gotten married in venues in DC or MD. The licence was probably mailed back their counties, without incident.

Unless the VA law contains 'notice' of failure at the state boundaries, no problem. In fact, I suspect PLENTY of couples did what I outlined. Does this mean their marriages are invalid? According to Ken, yes....

Laws require reasonable 'notice', and you cannot insert it ex post facto....

I say this as a PA resident who was getting married in Annapolis, MD....I just got the Md license, 'cause PA was a pain in the ass.

[onenote]

24. the point is that under the circumstances you described, the marriage isn't valid anywhere

Its not valid in DC or Maryland because marriages performed in those jurisdictions are not valid unless performed pursuant to a marriage license issued by that jurisdiction. That Virginia won't recognize a marriage that was invalid where performed is hardly a shock.


And its a good thing you got a Maryland license, because it would be a violation of Maryland law both for you to get married in Annapolis without one and for someone to perform the ceremony in maryland without a maryland-issued licensel

§ 2-401. License required; penalty.

(a) License required.- An individual may not marry in this State without a license issued by the clerk for the county in which the marriage is performed.
(b) Penalty.- Any individual who violates this section is guilty of a misdemeanor and on conviction is subject to a fine of $100.



§ 2-406. Performance of ceremony.

(e) Performance without license prohibited; penalty.-

(1) An individual may not perform a marriage ceremony without a license that is effective under this subtitle.

(2) An individual who violates the provisions of this subsection is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $500.

[msanthrope]

25. So, where's the relevant law for VA?

You cited MD. Which has a specific jurisdictional element. Which is my point.

[onenote]

29. you are getting confused

The issue is whether someone who gets married outside of Virginia is legally married if the marriage is based on a Virginia marriage certificate. Its not, because the marriage isn't valid where it was performed.

Virginia -- like every other jurisdiction I know of -- does require that marriages performed in Virginia be performed pursuant to a marriage license issued by Virginia. But even if that wasn't the case, it wouldn't be relevant to the case at hand -- a marriage performed OUTSIDE Virginia without a marriage license valid in the jurisdiction where the marriage was performed.

You seem to think that unless the Virginia marriage license says on its face that it can't be used outside Virginia that its a perfectly valid document for use in getting married anywhere. Sorry, but that's simply not right.

Interestingly enough, Virginia does have a provision in its code that addresses the situation of soemone who got married outside the state using a Virginia marriage license. It reads as follows:

§ 20-37.1. Validation of certain marriages solemnized outside of Commonwealth.

All marriages heretofore solemnized outside this Commonwealth by a minister authorized to celebrate the rites of marriage in this Commonwealth, under a license issued in this Commonwealth, and showing on the application therefor the place out of this Commonwealth where said marriage is to be performed, shall be valid as if such marriage had been performed in this Commonwealth.
(1952, c. 133.)

The key word in this provision is "heretofore" -- this provision was adopted in 1952 to validate marriage that had previously been performed outside Virginia based on a Virginia-issued marriage license. By its terms, its backwards looking -- it ratified marriage that would not be valid if they were conducted today.

[msanthrope]

33. No, I'm not--look at what you cited...

It's says "heretofore", which means it is a statute validating PAST marriages.

--but does it preclude marriages performed AFTER the date?

Minus points on your final exam if you ASSUME it does without specific language.

In fact, using legislative construction your law school should have taught you in the first semester, I can make the stronger point that because you have a statute validating HERETOFORE marriages, in the total absence of a clause negatively designating future marriages, the legislature intended to make the statute carry forward.

So find me the Virginia law that speaks on point. You still haven't.

[onenote]

37. I'm going to try one more time

Virginia law can't make a marriage valid when it wasn't valid where it was performed. Get it? Virginia can't magically make a marriage valid that isn't valid where it was performed. To get married in Maryland you need a Maryland-issued marriage license. You can't get around it by getting a marriage license from somewhere else. Do you honestly think that Maryland law requiring a Maryland-issued license can be circumvented by getting a license from Virginia? If so, what exactly is the point of the requirement that Maryland has that marriage performed in-state have to be pursuant to a marriage license issued by Maryland (and not just anywhere in Maryland, but the county that issued the license).

My final word comes from the Virginia code which expressly describes certain circumstances in which a marriage that would not otherwise be valid will be deemed valid -- principally situations where the person performing the marriage was thought to be authorized to perform the marriage but wasn't That provision states:

§ 20-31. Belief of parties in lawful marriage validates certain defects.
No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Note the key clause "if the marriage be in all other respects lawful" -- well, a marriage performed in Maryland pursuant to a license issued outside Maryland is not "lawful". And its not valid in Virginia.

[Bitwit1234]

11. Beat me to it. Virginia used to be a state

where people had intelligence now they are stupid as crap.

I have to tell you this. I belong to a genealogy list from one of the Virginia counties. Someone posted a commercial message about income tax refunds, and then later, they apologized because they were sending it to a person, but hit the send and it went to the list instead of the individual. Then some dips**t wrote, "well if they made a mistake and hit the wrong button it had to be a Democrat". Boy did the fire storm start, the list administrator got 3,500 replies and banned the person from the list. She said the list was no place for political opinions. I un subscribed anyway, I didn't want to be associated with people like that.

[joeybee12]

13. And not so long ago they seemed like they were intelligent again,

but come 2009, they nosedived.

[davidinalameda]

4. actually this makes sense I think

I'm not sure but I don't think that just because you have a marriage license means you're married

the couple should have gotten a Maryland marriage license since they were married there

[onenote]

18. you are correct

Maryland law:
§ 2-401. License required; penalty.

(a) License required.- An individual may not marry in this State without a license issued by the clerk for the county in which the marriage is performed.

In other words, the wedding wasn't legit in Virginia because it wasn't legit in Maryland where it was performed without a Maryland-issued license.

Cuchinelli is a jerk, but I'm not sure why this ruling is all that "controversial"

[davidinalameda]

27. because it's confusing on the surface

but once's people stop to actually read it, it's right despite him being a jerk

[Retrograde]

7. What does he think of Loring V. Virginia?

The Supreme Court ruling from back in the days when Virginia didn't allow miscegenation, as it was termed.

[joeybee12]

8. The eventual outcome of that probably brings him to tears...

and not tears of joy.

[onenote]

20. that would be "Loving" v. Virginia

By the way, at the time the Loving v. Virginia case was brought, Virginia was one of 17 states with such laws on the books: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, West Virginia. Moreover, despite being held unconstitutional (and despite being morally indensible),it wasn't until 2000 that Alabama became the last state to repeal its anti-miscegenation law.

[Renew Deal]

9. I'm married in 49 states and the rest of the world.

But in Virginia I am a free man! :party: :rofl:

[bpj62]

10. Not a practicing attorney

Although Ken Cuccinelli passed law school he never practiced law in Virginia. This fact was conveniently overlooked by the press during his run for the Attorney Generals office in 2009. As for his opinion he is wrong. WHen my wife and I applied for our marriage license in 1994 the clerk only asked if we were going to resided in Virginia not if we were getting married in Virginia. Many people get married in DC or Maryland churches but reside in Virginia. There is something else driving this opinion.

[joeybee12]

12. What's driving it is marriage equality...the homophobic slug is trying

to deny recognition of gay marriages performed in other states.

[onenote]

15. its a weird opinion, but how does it do that?

All the opinion says is that a valid marriage does not exist if it is performed pursuant to a marriage license issued in Virginia by a clerk of a Virginia Circuit court, is performed by a minister or other person authorized in Virginia to celebrate the rites of marriage, but the ceremony itself takes place outside Virginia.

Since no clerk of a Virginia circuit court is going to issue a marriage license to a same sex couple (unfortunately), this opinion cannot and does not have anything to do with gay marriage or recognizing marriages from other states.

[joeybee12]

26. I'm not saying it does...I'm saying that's what's driving his reasoning...

...as he is obssessed with homosexuality and gay marriage...it's behind everything he does...I'm sure he thought about that when he issued the decision.

[onenote]

30. still not making sense

but whatever...

[chollybocker]

Then what is YOUR opinion on the AG's motivation?

You've cited much legalese, but what? is Cucc just trying to tie up old legal strings? WHY is he doing this was the question.

[onenote]

36. he got asked a question about the law and answered it?

[chollybocker]

35. ctrl-z

...stupid computer.

[davidinalameda]

28. the question is where did you get married

and where did you get your marriage license

not where you lived after you got married

[mahatmakanejeeves]

38. "Although Ken Cuccinelli passed law school he never practiced law in Virginia."

I think that might not be correct. He has a degree in mechanical engineering, and I he practiced intellectual property law for some time.

Cuccinelli & Day

Ken Cuccinelli

Ken Cuccinelli is a business law attorney with a particular focus on intellectual property protection and serving as an outsourced general counsel to small and mid-sized companies. His wide range of experience includes litigation, licensing, financing, employment, advertising, branding, corporate formation, business transactions and contracts for both domestic and international clients.
....

Prior to joining Cuccinelli & Day, Mr. Cuccinelli worked in the patent litigation department of Oblon, Spivak, McClelland, Maier & Neustadt, P.C., and prior to that, he was a general practitioner with a small Fairfax law firm.

© 2007 Cuccinelli & Day, PLLC

[lynne]

19. Would have to see a Virginia marriage license to know if he's talking out of his butt -

- Don't know what one says and that's the real clincher in this deal. If the VA marriage license states it is only valid for marriages performed in VA, then he's right. Without seeing one, we really don't know.

[msanthrope]

22. Well, that's the crux--is there valid 'notice' of jurisdictional

boundaries????

Fuck--ARE there jurisdictional boundaries????

[msanthrope]

23. Well, that's the crux--is there valid 'notice' of jurisdictional

boundaries????

Fuck--ARE there jurisdictional boundaries????

[onenote]

31. it doesn't matter what the Virginia license says

If the Virginia marriage license said on its face that its valid for marriages outside Virginia (and I'm sure it doesn't say that), it wouldn't magically change the laws of every other state that require a marriage license issued by that state. Maryland requires that a marriage license be issued by the county in maryland where teh marriage is performed. The fact that you have a piece of paper from Virginia saying its valid everywhere doesn't mean a damn thing in Maryand. And if the marriage isn't valid where it was performed, its not going to be valid in Virginia.

[11 Bravo]

34. As I posted during the run-up to the last election, "The Cooch" is a truly dangerous nutjob.

He scares me as much as anybody on the political scene today.