State Dept. Will Recognize Foreign Same-Sex Marriages—But Not Polygamous Ones

Terence P. Jeffrey | August 5, 2013 | 5:45pm EDT
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Secretary of State John Kerry with Saudi Prime Minister Saud al-Faisal in Ryadh, Saudi Arabia, on March 3, 2013. (AP Photo/Jacquelyn Martin)

( - Secretary of State John Kerry announced Friday at the U.S. Embassy in London that the State Department will now recognize in its visa-processing practices same-sex marriages performed in foreign countries—saying that “as long as a marriage has been performed in a jurisdiction that recognizes it so that it is legal, then that marriage is valid under U.S. immigration laws.”

The State Department clarified to on Monday that this principle does not extend to polygamous marriages, which are legal in many Muslim countries.

“Today, the State Department, which has always been at the forefront of equality in the federal government, I’m proud to say, is tearing down an unjust and an unfair barrier that for too long stood in the way of same-sex families being able to travel as a family to the United States,” said Kerry.

“I’m very pleased to be able to announce that effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses,” said Kerry. “And here is exactly what this rule means: If you are the spouse of a U.S. citizen, your visa application will be treated equally. If you are the spouse of a non-citizen, your visa application will be treated equally. And if you are in a country that doesn’t recognize your same-sex marriage, then your visa application will still be treated equally at every single one of our 222 visa processing centers around the world.

“Now, as long as a marriage has been performed in a jurisdiction that recognizes it so that it is legal, then that marriage is valid under U.S. immigration laws,” said Kerry, “and every married couple will be treated exactly the same, and that is what we believe is appropriate.”

In light of Kerry’s statement “that a marriage is valid under U.S. immigration laws” as long as it “has been performed in a jurisdiction that recognizes it so that it is legal,” asked the State Department if it would be recognizing polygamous marriages performed in jurisdictions that recognize the legality of polygamous marriages--and if not, why not?

In response, a State Department spokesperson said: “I would point you to the Immigration and Nationality Act Section 212(a)(10)(A), which states, ‘Any immigrant who is coming to the United States to practice polygamy is inadmissible.’

However, the State Department’s Foreign Affairs Manual describes polygamy as an “historical or religious practice” and states that it is acceptable for a would-be immigrant to the United States to believe in polygamy, advocate it, and have previously practiced it. The key issue, according to the manual, is whether the person intends to actually engage in polygamy once he arrives in the United States as an immigrant.

The manual also indicates that foreign polygamists seeking to visit the United States along with multiple wives may do so, and that it is up to the discretion of State Department officials whether to issue B-2 visas (tourist visas) to the “additional spouses” of such visitors.

“Polygamy is the historical custom or religious practice of having more than one wife or husband at the same time. It is also called plural marriage,” says the State Department manual.

The manual advises State Department personnel on “distinguishing current practice from advocacy, belief, or past practice” when it comes to polygamy.

“We interpret the phrase ‘...coming to the United States to practice polygamy...’ to mean that an alien who intends to practice polygamy when he or she enters the United States in any immigrant category is ineligible,” says the manual.

“In order for ineligibility to result, the alien must intend to actually practice polygamy in the United States,” says the manual. “The alien's mere advocacy of or belief in the practice, or the fact that the alien at one time in the past may actually have practiced polygamy, would not be sufficient to render a finding of inadmissibility unless you have available facts which would lead a reasonable person to conclude that the alien intends to take up or resume the practice once in the United States. For example, an alien who believes in the practice of polygamy and who has divorced all but one of his wives just prior to visa application would arouse suspicion if it were known that the divorced spouse had recently obtained a nonimmigrant visa.”

This prohibition on practicing polygamy does not apply to aliens applying for non-immigrant visas as opposed to immigrant visas. When a polygamist wants to visit the United States for some other purpose than to immigrate here, the manual says State Department personnel can give B-2 tourist visas to his “additional spouses.”

“This section is not applicable to nonimmigrants,” says the manual. “However, those visa categories which confer derivative status for the spouse of a principal alien do not allow for issuance of derivative visas to multiple spouses. You may, however, use discretion in issuing the additional spouse(s) a B-2 visa, if otherwise eligible and qualified.”

A State Department webpage entitled “Nonimmigrant Visa for a Spouse” has a subsection entitled, “What Is a ‘Spouse’?”  Here the State Department says: “In cases of polygamy, only the first spouse may qualify as a spouse for immigration.”

In his announcement Friday, Secretary Kerry said the United States was trying “to make sure that all people are created equal.”

“We are still struggling to make equal the rights between men and women and to break the glass ceiling and to make sure that all people are created equal,” said Kerry.

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