In United States v. Windham, __ M.J. __, No. 20160340 (A. Ct. Crim. App. Nov. 17, 2017) (link to slip op.), a three-judge panel of the Army CCA rejected an equal protection challenge to a prosecution for larceny based on a sham marriage (also known as a contract marriage).
Specialist (E-4) Windham pleaded guilty to larceny (of a housing allowance) and conspiracy to commit larceny (of the allowance), telling the military judge that:
“his marriage to Ms. TG [w]as a ‘fake marriage,’ a “contract marriage,” and stated “we did not get married with the intent of being in a relationship.” The military judge accepted appellant’s plea to conspiracy to commit larceny of BAH and larceny of BAH.
Slip op. at 2. On appeal, Windham asserted that the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013) (the same-sex marriage case), requires the federal government to recognize his marriage.
The CCA rejected the challenge:
While Windsor nullified DOMA and its extensive applicability to several federal laws and regulations, the Supreme Court continued to recognize the “constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy.” For example, even if a marriage was valid under state law, the federal government was not required to recognize, for immigration purposes, a marriage entered into for the sole purpose of procuring a noncitizen’s admission into the United States.
Slip op. at 3 (citations omitted). It concluded:
the issue at bar is not whether appellant’s Texas marriage certificate is or is not valid and should be recognized by the federal government, but rather whether appellant’s sole purpose in entering the marriage was to obtain governmental funds to which he was not otherwise entitled. . . .
A review of appellant’s discussion with the military judge makes it abundantly clear his “sole purpose” in marrying Ms. TG was to obtain a BAH entitlement at the with-dependent rate.
Slip op. at 4.
The important point here is that Windham pleaded guilty, and “admitted to the military judge he married Ms. TG ‘for the sole purpose of obtaining money from the United States.'” Slip op. at 2. That’s a crucial fact. See also United States v. Hall, 74 M.J. 525, 530 (A.F. Ct. Crim. App. 2014) (“What we hold today is simply this: It is not the absence of a perfect or ideal ‘love, honor, and cherish’ motivation of the parties that renders the consequences flowing from the appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a singularly focused illicit one—an intent to fraudulently acquire a government payment stream—that does so.”)