VP-446985.
A-7283133
Decided by Board April 23, 1952
Visa petition — Beneficiary wife/niece — Section 9, Immigration Act of 1924 — Marriage in Rhode Island — Cohabitation in Pennsylvania thereafter.
(1) A marriage between uncle and niece of the Hebrew faith in Rhode Island (1950) is lawful in that State.
(2) A celebration of such a marriage in Pennsylvania is unlawful.
(3) An uncle and niece lawfully marry in Rhode Island and thereafter cohabit in Pennsylvania, where such a marriage is considered voidable rather than void ab initio. Absent any authority to the contrary, the assumption is unwarranted that it was the intention of the legislature of the State of Pennsylvania to criminally prosecute persons lawfully married in Rhode Island because they cohabit in Pennsylvania where the celebration of such marriages is unlawful, and under the circumstances it would hardly seem reasonable that the State of Pennsylvania would criminally prosecute the parties to such marriage prior to the litigation of its validity.
(4) It is well established that the marriage of an uncle and his niece is considered lawful for immigration purposes if valid where performed and if the State in which they intend to reside does not regard the cohabitation of such persons therein as criminal (37 Op. Atty. Gen. 102, 1933).
BEFORE THE BOARD
Discussion: This case presents an appeal from orders entered by the Assistant Commissioner on July 13, 1951, and December 20, 1951, denying a petition for the issuance of an immigration visa filed pursuant to section 9 of the Immigration Act of 1924 for the purpose of securing nonquota status for the above-captioned beneficiary as the wife of a naturalized United States citizen within the meaning of section 4 (a) of the same act. The orders entered by the Assistant Commissioner are predicated upon a finding that the petitioner/husband, a resident of Pennsylvania, and the beneficiary/wife, a native of Germany, would be subject to criminal prosecution in the State of Pennsylvania, the situs of their proposed cohabitation, because their marriage is not recognized as valid in that State. Counsel in his exceptions to the order relies primarily on article IV, section 1, of the Constitution of the United States and urges that "before any State can be relieved from its obligation under the `full faith and credit clause' * * * on any issue on the ground of repugnance to its public policy, the sum total of its declaration and expression of public policy, must be utterly without ambiguity, doubt, and certainly free from contradiction." Counsel also urges that the marriage in question is not void ab initio but merely voidable under Pennsylvania law, and cites cases in support of this point.
The facts of the case are fully stated in the opinions below. The petition referred to herein was executed on February 27, 1951, in behalf of the above-captioned beneficiary, alleged to be the lawful wife of the petitioner, a naturalized citizen of the United States. The petitioner and the beneficiary were married on December 6, 1950, at Providence, R.I., in a rabbinical ceremony. The record discloses that the beneficiary is the daughter of the sister of the petitioner. They are now residing in Pennsylvania. It is conceded that a marriage between an uncle and a niece of the Hebrew faith is lawful in the State of Rhode Island.
It is well established that the marriage of an uncle and his niece is considered lawful for immigration purposes if valid where performed and if the State in which they intend to reside does not regard the cohabitation of such persons therein as criminal (37 Op. A.G. 102, March 2, 1933). The only question presented, therefore, is whether the cohabitation of the petitioner and beneficiary in the State of Pennsylvania would subject them to criminal prosecution.
There is a statute in the State of Pennsylvania forbidding incestuous marriages and included within the statutory definition is the marriage between uncle and niece. The Assistant Commissioner in his opinion of December 20, 1951, relies on the cases of U.S. ex rel. Devine et al. v. Rogers, 109 Fed. 886 (D.C.E.D. Pa., June 26, 1901) and Commonwealth ex rel. v. Grove, 40 Pa. Dist. and County Rep. 139 (April 30, 1940), 88 P.L.J. 583, to support his conclusion that the cohabitation of the parties hereto in the State of Pennsylvania would subject them into criminal prosecution.
The act of June 24, 1939, 18 Purdens Pa. Statutes, sec. 4507, which reenacts the act of March 31, 1860, the pertinent portion of which reads as follows: "Whoever * * * intermarries within the degrees of consanguinity or affinity, according to the following table, is guilty of incest * * *."
We have carefully reviewed the cases relied upon by the Assistant Commissioner and it is doubtful as to whether they are dispositive of the issue here presented which concerns the public policy of the State of Pennsylvania as opposed to the "full faith and credit" clause of the Constitution of the United States. The Rogers case ( supra), is a decision by the District Court of the Eastern District of Pennsylvania handed down in 1901. The relator, a naturalized citizen of the United States, sought the entry of his wife, Rosa, and son, William, an idiot, as derivative citizens predicated upon a lawful marriage in Russia. It was established that the wife was the niece of her husband, that both were orthodox Jews, and that their marriage was lawful where celebrated. The question of alienage, according to the court, depended upon whether Rosa would be regarded at the relator's lawful wife in the State of Pennsylvania where such marriage, if originally celebrated in that State, would be regarded as incestuous. The court in its opinion recognized the well-established rule that a marriage valid where celebrated is generally regarded everywhere as valid. Referring to the exception to the general rule, the court said, "If the relation thus entered into elsewhere, although lawful in the foreign country (Russia), is stigmatized as incestuous by the law of Pennsylvania, no rule of comity requires a court sitting in this State to recognize the foreign marriage as valid." The court was of the opinion that "a continuance of the relation here (Pennsylvania) would at once expose the parties to indictment in the criminal courts, and to punishment by fine and imprisonment in the penitentiary."
There are two basic reasons why the Rogers case ( supra), may be considered as doubtful authority and not dispositive of the question before us. The marriage under consideration in that case was celebrated in Russia and no rights, privileges or immunities are conferred by the Constitution of the United States in respect to the laws and judgments of foreign states or nations, ( Aetna Life Insurance Co. v. Tremblay, 223 U.S. 185 (1912)). The rule of comity, as among the states of the United States, therefore, was not involved.
The second basic reason and the most important, in our judgment, is the fact that legislation in the State of Pennsylvania subsequent to the 1901 opinion in the Rogers case unquestionably affects a marriage celebrated under the conditions here presented between two persons within the prohibited degrees of consanguinity or affinity. It would appear that such a marriage, lawful where celebrated, is now voidable and not void ad initio in the State of Pennsylvania. We refer to section 10 of the act of May 2, 1929 (Laws of Pa., 1929, p. 1237), as amended by the act of March 19, 1943 (Public Law 21, sec. 1). A fortiori, if the marriage was void ab initio, there would be no necessity for legislation providing for divorce proceedings. Furthermore, we note that the court, in giving the Pennsylvania statute extraterritorial effect insofar as cohabitation of the parties within the State is concerned, quotes from an Ohio case ( State v. Brown, 47 Ohio St. 102, 23 N.E. 747) and merely gives the citations of two Pennsylvania cases. The Pennsylvania court in one of these cited cases ( Parker's Appeal, 44 Pa. 309) expressly said, "Under this act the marriage of an uncle and niece is voidable, not void." The Pennsylvania court in the other case ( In re Stull's Estate, 183 Pa. 625, 39 A. 16) had under consideration the act of March 13, 1815 (Public Law 286), which is not applicable here since it concerns a husband or wife who has been guilty of the crime of adultery and forbids them to marry the person with whom the said crime was committed during the lifetime of the former husband or wife. Both cases were civil in nature and not criminal.
The act of May 2, 1929, as amended, reads as follows:
"When a marriage has been heretofore, or shall hereafter be, contracted and celebrated between two persons within the prohibited degrees of consanguinity or affinity, according to the tables established by law, it shall be lawful for either of said parties to obtain a divorce from the bond of matrimony in the manner hereinafter provided * * *."
Referring to the act of March 31, 1860, which was reenacted by the act of June 24, 1939. (See footnote 2.)
The case of Commonwealth ex rel. v. Grove ( supra), relied upon by the Assistant Commissioner, does not appear to be authority for the question here presented. The alleged marriage in that case was one at common law between an aunt and her nephew, which had its inception in the State of Pennsylvania where the parties thereto appear to have always resided. The question before the court was whether a common-law marriage could be established under the conditions aforementioned which would warrant the court's issuing an order against the defendant for support under the act of April 13, 1867 (Public Law 78). The court held that under the facts presented there could be no contract between the prosecutrix and defendant to "enter into the marriage relation" because the law in Pennsylvania "specifically prohibits the intermarriage of persons within the degrees of consanguinity of aunt and nephew." We note that the court made no reference to the cohabitation of the parties as criminal per se. It merely said that under the code they were not "competent to intermarry."
The subject of the status of prohibited marriages, insofar as they relate to the immigration laws, has been before us on numerous occasions. It was pointed out in Matter of C----, A-5896873 (August 29, 1941), that at common law and under civil law incest involved only parties lineally related or related collaterally in the first degree, and that the extension of incest through legislative enactment was due to consideration of eugenics and not inherent morality. The case of Matter of B----, A-5969809 ( 2 IN Dec. 617, June 10, 1946), presented the question of whether the offense of incest, as defined by a statute of the State of Washington, is turpitudinous where the parties involved were uncle and niece of the whole blood. The marriage in that case was performed in the State of Washington where both parties resided. The statute involved is almost identical to the one in Pennsylvania. In holding that the offense did not involve moral turpitude, the Commissioner said, "* * * It appears in some jurisdictions, including one State in this country (Rhode Island), that the marriage of an uncle and niece is permitted and valid. Statutory enactments rendering the same marriage void and criminal in other jurisdictions should not stigmatize such marriages as being inherently immoral." This position finds support in judicial as well as administrative decisions.
Petition of Lieberman, 50 F. Supp. 121; U.S. v. Francioso, 164 F. (2d) 163, (C.C.A. 2, 1947); Rpt. of A.G., N.Y. State (1933), p. 83; In re L---- G----, C-5905500; In re N---- D---- P----, C-6612714; In re S---- T----, C-6287379.
The only question remaining is whether the State of Pennsylvania would regard the continued cohabitation therein of the petitioner and the beneficiary as criminal. It appears that they have cohabited in that State since their marriage in Rhode Island on December 6, 1950, and there is no showing of criminal action having been taken against them. Marriage is treated by all civilized nations as a peculiar and favored contract. The general rule we have stated is that between persons sui juris, the legality of marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere ( Patterson v. Gaines, 47 U.S. 550; Van Storch v. Griffin, 71 Pa. 240; Story, Conflict of Laws, sec. 113). Infinite mischief and confusion would ensue with respect to legitimacy, succession, and other rights if the validity of the marriage contract were not to be tested by the laws of the country where it was made (2 Kent's Commentaries 92).
The foregoing rule, however, is subject to exceptions and cannot be applied to sustain polygamous marriages or one that is by all civilized nations regarded as incestuous and immoral. When we refer to incestuous marriages, care must be taken to confine the doctrines to such cases as by a general consent of all nations are deemed incestuous ( Story, Conflict of Laws, sec 114). The reason for this exception seems to be that as the rule derives its force only from comity among civilized nations, it cannot avail to sustain a marriage which is forbidden by divine law. The marriage of persons within the degree of uncle and niece was not prohibited by common law.
Harrison v. Burwell, 2 Ventris 9 (Eng.); Wightman v. Wightman, 4 Johnson's ch. 343 (N.Y.); Campbell v. Crampton, 2 Fed. 417, C.C.N.Y.
Marriages of uncle and niece are regarded as valid in many foreign countries and one State of the United States. It is countenanced by the Hebrew religion. The marriage with which we are here concerned is not, therefore, unlawful because incestuous within the meaning of the general exception to the rule recognized by the law of nations.
Russia, Poland, Germany, Italy; Rhode Island.
The foregoing gives rise to another exception to the general rule insofar as the States of the United States are concerned. It may be stated thus: When a State by statute prohibits marriage between persons related in a certain degree expressly upon the ground that such marriages are "contrary to God's law," and a citizen of that State marries in violation of such prohibition while in another State where the marriage is lawful, such marriage will, upon the return of the citizen to his own domicile, be held invalid by the courts of that domicile.
We must, therefore, consider the provisions of the Pennsylvania statute and the cases construing that statute in light of the foregoing principles to determine whether the parties to this proceeding, by their continued cohabitation in the State of Pennsylvania, would be subjected to criminal prosecution on the basis of a marriage lawfully contracted in the State of Rhode Island. That portion of the statute pertinent here merely says, "Whoever * * * intermarries within the degrees of consanguinity or affinity * * * is guilty of incest * * *." The statute does not in express terms attempt to fix upon persons domiciled in Pennsylvania a personal incapacity to marry within the prohibited degrees outside the State of Pennsylvania, nor does the statute expressly declare such a marriage to be immoral or contrary to divine law. The statute makes no reference to the existence of the marriage relationship or cohabitation in Pennsylvania as man and wife.
The only criminal prosecutions that we can find in the reported cases of Pennsylvania concern that portion of the statute which deals with incestuous fornication and incestuous adultery. True, the courts of Pennsylvania have held that marriages contracted under the conditions here presented are encumbered with certain legal disabilities if the parties thereto seek the protection of the Pennsylvania courts. However, in every instance that we have been able to find, the legal disability concerns the contractual obligation. Thus it has been held that a citizen of Pennsylvania who married his niece in Rhode Island may take advantage of the illegality in a subsequent action for divorce filed in the Pennsylvania court ( Weiss v. Weiss, 6 Pa. D. C. Rep. 669 (1925)). As stated above, the Pennsylvania courts have held that such a marriage is voidable and not void, ( Parker's Appeal ( supra)). The Pennsylvania courts have also held that where a marriage similar to the one here under consideration has not been dissolved during the lifetime of the parties, its legality may not be inquired into after the death of either spouse ( Walter's Appeal, 70 Pa. 392).
Commonwealth v. Bruce, 4 P.L.J. 14 (1845); Commonwealth v. Jenkins, 46 D. C. 677 (1942); Commonwealth v. Gieringer, 16 Berks County L.J. 112 (1923); Commonwealth v. Wigenroth, 38 Lancaster L.R. 413 (1923).
The language of the statute, giving the word "intermarries" its usual and ordinary meaning, in our opinion refers to the original making of the contract or the ceremony of marriage. The implications arising from the reported cases and subsequent legislation referred to herein, when coupled with the fact that the statute does not expressly state that the legislative action was taken as a declaration that the marriage status of cohabitation is contrary to divine law or immoral, leads us to conclude that the general rule as to the validity of foreign marriages prevails insofar as the subsequent criminal prosecution of the parties hereto is concerned. In the absence of authority to the contrary, we are not warranted in assuming that it was the intention of the Legislature of the State of Pennsylvania to criminally prosecute persons lawfully married in Rhode Island because they cohabit in Pennsylvania where the celebration of such marriages is unlawful. The position we take is supported by a letter dated April 14, 1952, from the deputy attorney general of the State of Pennsylvania wherein he cites the case of Parker's Appeal ( supra), as authority that a marriage of an uncle and a niece is voidable and not void ab initio. Under the circumstances, therefore, it would hardly seem reasonable that the State of Pennsylvania would criminally prosecute the parties to such a marriage prior to the litigation of its validity. The appeal will be sustained.
Order: It is directed that the appeal be and the same is hereby sustained.