I rest my concurrence upon the ground set out in the opinion of Mr. Justice McDONOUGH. I think our courts are required not to recognize a marriage which is consummated by domiciliaries of this state in another state according to the laws of that state when such marriages are in violation of the strong public policy of this state. Sec. 40-1-2, U.C.A. 1943, prohibits and makes void certain marriages in this state and thus declares in part the public policy of this state. Our courts should not recognize a marriage by *Page 196 our residents made in another state against our announced public policy.
Under Williams v. North Carolina, 325 U.S. 226,65 S. Ct. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366, we are free to enforce our own public policy insofar as our residents are concerned. Under Sec. 40-1-2, Utah has formulated a public policy insofar as our residentials are concerned. It is unlikely that, after adopting such a policy the legislature would, by Sec. 40-1-4, compel recognization of marriages by Utah residents in violation of that public policy accomplished by crossing the line and contracting marriage.
I think a logical and natural distinction could be drawn between marriages in violation of the provision of Sec. 40-1-2 on the one hand and common-law marriages on the other. The former involve a disability on the individuals who would contract marriage. The latter involve merely the formalities necessary to create the marital status. Thus under Sec. 40-1-2, a negro and a white person cannot marry in Utah. No matter what type of ceremony is performed or procedure followed, they cannot create the status of man and wife in Utah and the public policy is against recognizing that status as existing. The policy is equally strong whether they marry in Utah or in some other jurisdiction, whether they comply with the formal requisites or not. The same is true as to polygamous marriages, marriages by persons with social diseases which are communicable, marriages by idiots, etc. But the policy may not be enforceable against nonresidents of Utah who marry elsewhere and then take up residence in Utah.
In the case of common-law marriages contracted in Utah, there is ordinarily no disability of the parties themselves. They could, by following the requisite formalities, take on the status of husband and wife. The invalidity springs from their failure to have a proper ceremonial marriage. If they go to another jurisdiction and comply with the formal requirements of that jurisdiction there is less justification for a refusal to recognize that marriage than in the case of other marriages violative of Sec. 40-1-2. The public policy *Page 197 is not against the contracting parties maintaining the status of man and wife in Utah; rather it is against the failure of the parties to have a ceremonial marriage. It should be noted that this distinction appears to be recognized by Sec. 132, Conflict of Laws, American Law Institute, set out in the opinion of Mr. Justice McDONOUGH.
But after all this has been said, Sec. 40-1-2, paragraph 3, prohibits and makes void marriages in Utah when not solemnized by an authorized person. That is declaratory of the public policy in Utah applicable to residents of Utah. And I do not see how we can make a distinction between marriages made in another state by domiciliaries of this state not solemnized (common law marriages) and other marriages prohibited and made void by Sec. 40-1-2 when such marriages are made between our domiciliaries in another state, such with an idiot or lunatic for instance. Logically all marriages proscribed by Sec. 40-1-2 whether with one having a disability or because not solemnized when made by our domiciliaries outside of this state would be against our announced public policy and our courts should therefore not recognize them.