Can the Scarlet Witch and Vision Legally Get Married?

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January 25, 2021

Marvel’s WandaVision asks the age-old question, can a mutant (or Inhuman or altered human) and an android have a loving marriage in a situational comedy? The series echoes themes from the 1980s Vision and Scarlet Witch limited series, The West Coast Avengers (hint: the US Government was not happy about the time Vision took over the nuclear arsenal), with a dash of Avengers Disassembled and House of M. There is a lot of source material to explore in this show.

Wanda and Vision are living in a small town with no memory of how they got there, but are claiming to be married. At the conclusion of the first episode, Wanda creates wedding rings for them and they exchange vows on the couch.

So…could a woman marry a robot?

More Human Than Human

Courts have stated that a “robot is not an animate object. It is not a living thing; it is not endowed with life. A robot is a mechanical device or apparatus, a mere automaton, that operates through scientific or mechanical media.”[1]

The Vision is definitely a machine without a skeleton, but he is clearly is an animate object and behaves like he has life, from telling jokes to singing. To say otherwise is right up there with saying someone’s golden retriever has no soul.

Case law is no less heartwarming on artificial intelligence, stating AI includes “expert system,” which are “are a class of computer programs that were first developed in the 1960’s. They seek to emulate the decision-making of human experts in a field of expertise (e.g. chemistry, medicine, geology). An expert system stores knowledge obtained from human experts in a ‘knowledge base.’” A “decision module” inference engine is “programmed to selectively apply expert rules stored in the knowledge base in order to resolve problems.”[2]

Defining life has both biologic and legal norms to meet, which also have significant controversy. The Supreme Court entered the firestorm of what is “life” in the abortion cases from Roe v Wade to Planned Parenthood v. Casey. The question of whether or not a state has an interest in promoting the “potentiality of human life” turns on whether or not that life is viable. As such, the state cannot put on an undue burden on a woman’s fundamental right to an abortion before a fetus is viable.[3]

How can these cases be applied to determining whether or not Vision is “alive”? If a robot’s programming gives it the ability to identify itself as an individual, be self-aware, and viable to survive on its own, does that make it alive? Would a court hold a robot that could think for itself and feel emotion be property? Or a new form of artificial life?

The law is not designed for “robots” to be recognized with human rights. First, biology defines life as 1) a distinctive characteristic of living organisms from dead organism or non-living things, as specifically from the capacity to grow, metabolize, respond to stimuli, adapt, and reproduce.[4] Secondly, the law defines a “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”[5]

Robots are not defined as a species by the law. They also do not meet all the elements for “life” as we currently define it. However, the capacity to grow does not need to be in the physical sense, but intellectually and emotionally. Is the robot self-aware? Does the robot have goals? Does it adapt to its environment, or does it need updated programming?

Vision is self-aware, experiences emotions, and is not limited by his original programming. All of those factors would give a Court pause in finding he is not “alive.” A judge would recognize something new would be happening and a country founded on personal freedom would want to know more before issuing an order.

We’re Going to the Chapel

Marriage is “a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary.”[6] The key to all marriages is that the marriage is between two human beings and there is consent.

Marriage is a Fundamental Right that has been the subject of large volumes of case law. States have put both reasonable and unreasonable restrictions on marriage, such as the reasonable requirement that the parties to be over the age of consent. However, there are examples such as Loving v. Commonwealth of Virginia, where the state enacted the following abomination[7]:

Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.

The United States Supreme Court was unanimous in finding Virginia’s racially based prohibition on marriage violated the Equal Protection Clause of the Constitution. Chief Justice Earl Warren explained[8]:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Would a Court apply this logic to a human who wanted to marry a robot? In the era of Marriage Equality, perhaps, if the robot possessed artificial intelligence to the point it was self-aware and felt love.

There are many legal limitations on marriage. Bigamy is the act of marrying one person while still legally married to another.[9] The law only allows a person to have one spouse at a time.[10] The Federal government prohibited bigamy in US Territories after the Civil War.[11] States also prohibit people from having multiple spouses. Courts have also refused to find a “religious exemption” for those claiming having more than one spouse is part of their faith. [12]

States also have strict prohibitions on incestuous marriages between family members. Courts have cited three reasons for not allowing incestuous marriages, besides the “GROSS, What’s Wrong with You” reaction[13]:

(1) [Incestuous marriages] are forbidden by ecclesiastical law (see Old Testament, Leviticus 18: 6-18);

(2) Inbreeding is thought to cause a weakening of the racial and physical quality of the population according to the science of eugenics; and

(3) [P]revent the sociological consequences of competition for sexual companionship among family members.

There is the fourth reason that such marriages immediately make people think of dueling banjos, thus requiring the strict enforcement for public safety, because Burt Reynolds will not always be there to save you.

I, Do

Justice Kennedy in Obergefell v. Hodges, the Marriage Equality case, outlined four legal principles and historical traditions supporting that holding that marriage is a fundamental for same-sex couples under the Constitution:

1) The right to personal choice regarding marriage is inherent in the concept of individual autonomy;

2) The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;

3) The right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and

4) Marriage is a keystone of our social order.

How would a court apply Obergefell to a human-robot marriage? As to the first point, there is no question that the human being has a concept of individual autonomy. Would the same be true for the AI robot?

A human-robot marriage would require a court to accept a new definition of “person” to include robots. A court would be more inclined to accept personhood if the robot was more like the Vision and not Robby the Robot. A judge would want to see humanity reflected in the robot, not a lack of it.

The third point gets tricky. One could argue a human-robot marriage would be physically impossible for procreation. Options for children would range from adoption to the human spouse either being artificially inseminated or having a surrogate mother. Or in Wanda’s case, reality altering magic.

Marriage is a keystone for our social order. That social order is broad enough for same-sex marriages, but might not be for human-robot. County clerks selectively reading the Three Laws of Robotics could throw massive fits in refusing to issue marriage licenses on cable news.

Courts would not expand marriage rights to robots unless the robot was substantially “human.” The law does not allow inter-species marriages. While many people might feel they did marry a gorilla, no one has a right to marry an animal. Robots with advanced AI might be in the same category.

What does this mean for Wanda and Vision? Perhaps a Court would find he is meets all of the requirements to be a legal human. There are strong arguments for such a finding. However, there is the real issue the law is not designed to answer such questions without legislation or Constitutional Amendment.

[1] Lewis Galoob Co. v. United States, 66 Cust. Ct. 484 (Cust. Ct., 1971).

[2] Vehicle Intelligence & Safety, LLC v. Mercedes-Benz USA, LLC, 2014 U.S. Dist. LEXIS 130809, 5-7 (N.D. Ill. Sept. 18, 2014).

[3] Planned Parenthood v Casey, 505 U.S. 833, 873, 876-78.

[4] Biology Online, Life, http://www.biology-online.org/dictionary/Life

[5] 16 U.S. CODE § 1532(16).

[6] CA Fam. Sec. 300(a) (California Code (2015 Edition))

[7] Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

[8] Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

[9] Westlaw Black’s Law 9th Dictionary App.

[10] See, Antony T. v Rosemarie B.T., 41 Misc. 3d 1208(A), 1208A (N.Y. Sup. Ct. 2013), citing 11 NY Prac, New York Law of Domestic Relations § 9:5.

[11] See, Cannon v. United States, 6 S.Ct. 278, 116 U.S. 55, 29 L.Ed. 561 (1885):

‘Every person who has a husband or wife living, who, in a territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman in a territory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead; nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court; nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract.’

[12] State v. Holm, 137 P.3d 726, 2006 UT 31 (Utah, 2006).

[13] Loughmiller’s Estate, Matter of, 629 P.2d 156, 229 Kan. 584 (Kan., 1981), citing 52 Am.Jur.2d, Marriages § 62, p. 915.

Who Owns the Millennium Falcon?

By

Brad Blanchard

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April 4, 2016

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In The Force Awakens, the Millennium Falcon starts out in the hands of Unkar Plutt, who stole it from the Irving Boys, who stole it from Gannis Ducain, who stole it from Han Solo, who originally got it from Lando Calrissian.

Rey and Finn steal it from Unkar, and lose it to Han Solo who *Spoiler* then dies. At the end of the movie Rey and Chewie are flying it. So, who does the Millennium Falcon actually belong too?

Because our understanding of the laws of property under the Empire, New Republic, and First Order are so lacking, for the sake of this analysis we’ll assume that U.S. law applies.

The Millennium Falcon makes a brief appearance in Revenge of the Sith, but we don’t know who owns it at that point. In the absence of any evidence to the contrary we’ll assume Lando Calrissian is the first lawful owner of the Millennium Falcon. At one point he engaged in a “game of chance”, defined as “poker, craps, roulette, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely by chance….” (Ohio Revised Code.2915.01) (Hereafter O.R.C). He lost that game of chance, in this case Sabaac, and ownership passed to Han Solo. Or did it?

If the game was not lawfully sanctioned, it would be an illegal debt that is unenforceable under U.S. common law so the Millennium Falcon would still belong to Lando Calrissian. Hence, the comment, “What have you done to my ship?”

If the game was legally sanctioned and the Millennium Falcon was used as payment, or partial payment, for a debt lawfully owed, then ownership would pass to Han Solo. (O.R.C. 2915.02 does not prohibit conduct in connection with gambling expressly permitted by law.) Thus the rejoinder by Han Solo to the above comment, “Your ship? Hey, remember you lost her to me, fair and square” asserting that ownership had passed to him.

The Millennium Falcon is considered personal property. For most personal property ownership is often determined by possession, even if the ownership, possession or interest is unlawful. (O.R.C. 2913.01) Because of this Han Solo either has an ultimate claim to the Falcon, having received it as a payment for a lawful debt, or can claim a superior interest second only to that of Lando Calrissian, since his possession is only one step removed from the lawful owner.

The Millennium Falcon is later stolen from Han Solo by Ducain. This allows Ducain to exert a possessory interest over the Millennium Falcon, even though his claim was unlawful.

And it was stolen from Ducain by the Irving Boys, who could then claim a possessory interest over the Millennium Falcon, even though their claim was unlawful.

And it was stolen from them by Unkar Plutt, who could also exert a possessory interest over the Millennium Falcon even though his claim was unlawful.

And it was stolen from Unkar by Rey and Finn, who could also claim a possessory interest over the Millennium Falcon even though their claim was unlawful as well.

According to the common law to determine the superior claim you simply work your way back up the chain. So Rey & Finn had a superior interest to everyone but Unkar’s, the Irving boys, Ducain, and Han Solo. Unkar’s interest trumps Rey & Finns. The Irving Boys have an interest that trumps Unkar’s. Ducains’ interest trumps the Irving Boys. And Han Solo has a superior claim to them all. And he then messes things up by dying. So now who owns the Millennium Falcon?

Well, assuming Han Solo died without a will, which seems pretty likely, who owns it will be determined by the laws of intestacy. Han Solo was married to Leia Organa. They were separated, but don’t seem to have made it a formal separation as recognized by the law. They had at least one child (Ben/Kylo Ren) but, as far as we know, neither of them had any children outside of the marriage. As a result, where there is a marriage and all the children are born of that marriage then the whole goes to the surviving spouse. (O.R.C. 2105.06.) So even though Rey may be flying the ship, Leia inherited all rights to the Millennium Falcon and it ultimately belongs to her… assuming Han won it in a lawful game of Sabaac…but he was a great swindler and never one for the rules, so it’s entirely possible it still belongs to Lando.

War of the Purple Roses

By

Josh Gilliland

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December 4, 2015

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Jeri Hogarth on AKA Jessica Jones was the poster child for everything horrible with attorneys. She bribed a juror at the beginning of her career, was having an affair with her secretary Pam, and was ethically challenged in arguably acting against the best interests of her client Hope with the press. Then there is the entire issue of secretly taking the aborted fetus of her client for experimentation. Some lawyers own restaurants on the side; Jeri apparently did bio-medical research.

Jeri’s wife Wendy sought a divorce from Jeri, likely based on Jeri’s adultery with Pam. Adultery is one of the specifically enumerated reasons for a divorce under New York law. NY CLS Dom Rel § 170(4).

Wendy demanded as a divorce settlement to have first 75% of Jeri’s income, and then ultimately 90%, in exchange for not disclosing old emails that contained evidence of Jeri’s jury tempering to the New York State Bar, which would result in immediate disbarment for Jeri upon conviction.

Problem: Wendy was demanding 90% of Jeri’s income to cover up a crime. This would make that provision of the divorce agreement void, as one cannot contract to cover-up a crime. This also poses serious ethical issues for Wendy’s lawyer, who effectively was helping threaten criminal liability as consideration for a divorce agreement to take an unconscionable amount of money.

A divorce agreement where one party has to provide 90% of their income to the other would fall under the class meaning of “unconscionable,” because “no man in his senses and not under any delusion would make on the one hand, and as no honest and fair man would accept on the other.” Murray on Contracts, section 96, citing Hume v United States, 132 U.S. 406 (1889), quoting from Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, 155 (Ch. 1750).

Wendy demanding 90% of Jeri’s income would be extortion under New York law, which is defined as when one person compels another to deliver them property in order to avoid 1) accusing the victim of a crime or cause criminal charges to be instituted against them, or 2) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule. NY CLS Penal § 155.05(2)(E)(iv) and (v). Courts as a matter of public policy do not enforce illegal bargains and as such, would not enforce a divorce agreement founded upon extortion.

Is Wendy entitled to a divorce from Jeri? Yes. Should Jeri be disbarred if she is convicted of jury tampering? Yes. Can Wendy extort Jeri for 90% of her assets in exchange for not reporting Jeri to the bar in a divorce agreement? No way. The Courts are not an instrument to enforce illegal deals for revenge.

Did Han Solo Abandon a Marriage?

By

Josh Gilliland

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August 21, 2015

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The new Star Wars comic set between Episodes IV and V has added a new spin on Han Solo: A woman named Sana Solo claimed Han is her husband. As quickly as you can say, “I’d sooner kiss a Wookiee,” Han has denied being married to Sana. If Sana were to be believed, this would mean Han abandoned the marriage. Making matters worse for Han, Sana is one ticked off bounty hunter who probably is seeking an extra-judicial resolution.

Let’s just hope that Han Solo does not have a profile on Ashley Madison.

Long, Long, Ago, In a State Far, Far, Away

Sana Solo has not yet produced a marriage certificate from any planet documenting her marriage to Han Solo. As such, we cannot analyze the laws of that planet on marriage. By way of comparison, abandoning a marriage is grounds for divorce in Texas and fault states such as New York. Moreover, abandoning a marriage could be a crime in both Texas and Oklahoma.

A Court may grant divorce for an abandoned spouse if 1) the offending spouse left the complaining spouse with the intention of abandonment; and 2) the offending spouse remained away for at least one year. See, Tex. Fam. Code § 6.005 and NY CLS Dom Rel § 170.

Abandonment cases are as varied as the color of lightsabers. In one case from 1914, a Texas farmer secured a divorce by abandonment of his wife after three years. The wife had claimed to leave the farm for a trip, but never returned. There were repeated attempts to save the marriage, but the farmer was unwilling to give up his farm and the wife unwilling to live on a farm. The Court accordingly found the marriage abandoned by the wife. Dickerson v Dickerson (Tex.Civ.App. 1918) 207 S.W. 941, 942.)

In a New York case, a woman of Roman Catholic faith married a Protestant man in a Protestant church. After the birth of a child and three years of marriage, the wife refused to recognize her own marriage or have sex with the husband unless they were remarried in a Catholic service. Diemer v. Diemer (1960) 8 N.Y.2d 206, 208.

The husband successfully brought an action for abandonment. The Court explained [in very 1960s language that would not fly in most states today]:

That a refusal to have marital sexual relations undermines the essential structure of marriage is a proposition basic to this court’s decision in the Mirizio case and as obvious as it is authoritative. Sexual relations between man and woman are given a socially and legally sanctioned status only when they take place in marriage and, in turn, marriage is itself distinguished from all other social relationships by the role sexual intercourse between the parties plays in it. This being so, it may not be doubted that a total and irrevocable negation of what is lawful in marriage and unlawful in every other relationship, of what unmistakably and uniquely characterizes marriage and no other relationship, constitutes abandonment in the eyes of the law.

It is clear, therefore, that the plaintiff now before us is entitled to a separation on the ground of abandonment unless his wife had good legal cause to refuse to have sexual intercourse with him. And, as to that, it is equally clear that she had neither cause nor justification. Although it appears that she acted without malice and was activated by deep-felt and conscientious religious convictions, her motives were not sufficient in law to excuse the abandonment of her marital status. If, as a result of religious scruples, she considers her marriage invalid or non-existent and, on that account, neglects the fulfillment of a primary marital obligation, in fairness and in law her husband must likewise have the power to free himself of its obligations. While our law is not to be “unnecessarily construed in a manner which would be hostile to religion in family life or to any other of those principles of moral, ethical and considerate conduct which ought to govern the marriage relationship”, we may not forget that this State, “as a matter of long-continued policy, * * * has fixed the status of the marriage contract as a civil contract”, governed by civil, not religious, law. ( Mirizio v. Mirizio, 242 N. Y. 74, 83, supra.) It follows as a consequence of the civil nature of the marriage contract that a wife who disavows her marriage and repudiates a fundamental marital function out of deep-felt religious conviction has abandoned her husband just as effectively as one who has done so for base and illegitimate motives.

Diemer, at *210-211, emphasis added.

Could Sana Solo bring a successful divorce for abandonment case against Han, assuming there is a valid marriage? It would appear so in New York, Texas, and Oklahoma.

However, Sana does not seem interested in divorce.

The Crime of Abandonment of Marriage After Seduction

Han Solo could face serious jail time and fines if the Empire has chastity and marriage laws like Oklahoma:

Any person who, under promise of marriage, seduces and has illicit connection with any unmarried female of previous chaste character shall be guilty of a felony punishable by imprisonment in the State Penitentiary not exceeding five (5) years, or by imprisonment in a county jail not exceeding one (1) year, or by a fine not exceeding One Thousand Dollars ($ 1,000.00), or by both such fine and imprisonment.

21 Okl. St. § 1120.

It is a felony in Oklahoma to abandon a marriage after seduction:

Any person charged by information or indictment with the offense of seduction who shall, before the trial of such charge, marry the female whom he was accused of seducing, thereby procuring the dismissal of such charge, and who shall within two (2) years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle him to a divorce under the laws of this state, shall abandon her or refuse to live with her, or shall be so cruel to her as to compel her to leave him, or shall be guilty of such outrages or cruelties towards her as to make their living together impossible, thereby leaving her or forcing her to leave him, and live apart from each other, shall be guilty of the offense of abandonment after seduction and marriage; and any person convicted of said offense shall be guilty of a felony and shall be confined in the State Penitentiary for a term of not less than two (2) years nor more than ten (10) years; and said marriage shall be no bar to the qualifications of said female to testify against the defendant; and the female so seduced and subsequently married and abandoned as herein provided, shall be a competent witness against said defendant.

21 Okl. St. § 1122.

Substantially more discovery needs to be conducted to see if Han Solo could be prosecuted for marriage after seduction and abandonment. Han must be a scoundrel, but it is unlikely he would seduce a woman, marry her, and then abandon her.

Gallifrey Stands! But What About the Marriages?

By

Josh Gilliland

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November 25, 2013

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Gallifrey Stands! The Day of the Doctor was a magnificent tribute to 50 years of Doctor Who. There was action, heroics, and 50 years of geek homages.

And of course, the question hiding in plain sight: Could the Tenth Doctor have a valid marriage to Queen Elizabeth I? Does this marriage make the Doctor a bigamist, given the Eleventh Doctor’s marriages to Marilyn Monroe in 1952 and and River Song in 2011?

As a preliminary matter, bigamy is the act of marrying one person while still legally married to another. Westlaw Black’s Law 9th Dictionary App. The law only allows a person to have one spouse at a time. See, Antony T. v Rosemarie B.T., 41 Misc. 3d 1208(A), 1208A (N.Y. Sup. Ct. 2013), citing 11 NY Prac, New York Law of Domestic Relations § 9:5.

The Tenth Doctor’s marriage to Queen Elizabeth I in the 1564 is the earliest known marriage to a human. The Eleventh Doctor marriage to Marilyn Monroe was on Christmas Eve 1952 and to River Song on April 22, 2011 in an alternate timeline.

Focusing on California law, since the second marriage to Marilyn Monroe was in California, states the following on marriage:

(a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless:

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

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

Cal Fam Code § 2201.

The Eleventh Doctor’s marriage to Marilyn Monroe was 349 years after the death of Queen Elizabeth I in 1603. Pursuant to Cal Fam Code § 2201(a)(2)(ii), the Doctor had a valid marriage to Marilyn Monroe, because Queen Elizabeth I was dead at the time the Doctor-Monroe marriage was contracted in 1952. In arguendo, the Tenth Doctor abandoned his marriage to Elizabeth I, which explained her anger in The Shakespeare Code that was never again addressed in the series.

The Doctor-Monroe marriage had to be annulled sometime shortly after the marriage, because Monroe married Joe DiMaggio in 1954 and then Arthur Miller in 1956. However, if not annulled, the Doctor-Monroe marriage would void the subsequent marriages to DiMaggio and Miller.

The Doctor’s marriage to River Song appears to not have a prior marriage that would nullify it, because it was 408 years after the death of Elizabeth I (however, all of time was collapsing on itself) and the dissolution of the Monroe marriage or Monroe’s death in 1962 (assuming the marriage was never annulled). This also assumed a marriage in Egypt in an alternate reality bound only by a bow tie without a marriage license is valid.

What we do not know about the Doctor is his first wife and children. What happened to them? More importantly, will we ever see Susan again? Her husband only had one life to live, while she had another twelve. Or how about the Doctor’s daughter? For those who want to follow the adventures of a female Time Lord, either Time Lady would be the natural choice for a spin-off series to kick-off the next 50 years.