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Massachusetts holds the line:

The highest court in Massachusetts has rejected the argument of out-of-state same-sex couples that they should be allowed to marry in Massachusetts even though their home states don't recognize such marriages. Problem with their argument is, a 1913 Massachusetts statute forbids such marriages. I haven't reveiwed the decision yet, so I can't say whether this is the right call as a matter of state statutory or constitutional law.

What I can say is that it is the pro-federalism result, buttressing the pre-existing power of the states to take their own path on the issue of gay marriage. Many opponents of gay marriage have argued that we need a federal marriage amendment to prevent gay couples from getting married in jurisdictions that recognize such marriages (for now, just Massachusetts) and then returning to their own home states to demand full recognition ("evasion" marriages). This argument was never a very good one, and today's decision reduces its force even more.

Of course, the "evasion" marriages foreclosed by today's decision are not the only means by which inter-state recognition of gay marriage might spread. The fact that some 6,000 gay couples are now married in Massachusetts guarantees that some of them will move out of the state and ask their new states to recognize their marriages, or at least ask that their marriages be recognized for some purposes (e.g., in a custody or property dispute). These cases will raise different, and much harder, questions than the one disposed of today.

But one part of the argument for a federal amendment has now been weakened. To the extent the decision today releases some of the hydraulic pressure for a federal amendment, what looks superficially like a small defeat for gay-marriage advocates may turn out to be a small victory for them.

CJColucci (mail):
Obviously, as an abstract proposition no state has to allow transients to marry under the authority of that state's laws, but the 1913 statute relied on, as I understand the history, is something of an embarassment. It was designed, if I recall correctly, as an accommodation to states with anti-miscegenation laws.
3.30.2006 4:08pm
Bryan DB:
Can someone explain to me (as an honest matter) how this ruling doesn't violate the Constitutional command that no State shall "deny to any person within its jurisdiction the equal protection of the laws"?
If a State can't discriminate on welfare benefits because someone just moved in (I'm thinking of the case involving CA), how can they discriminate with regard to their marriage law?
3.30.2006 4:29pm
Randy R. (mail):
Interesting that you would say this law is an "embarrasment." You are correct that it was passed in 1913 to accommodate states that prohibed interracial marriage.

Still -- the law was passed by a majority of the state legislature back then. And it has never been revisited or repealed since then. So a great many people during the last 100 years have found it NOT to be an embarrasment. Why is that? Could it possibly be because people have become more enlightened? Could it be that racism has actually declined?

More to the point, with regards to gay marriage, do you think that at some point in the future our laws prohibing gay marriage will be an 'embarrassment?'
3.30.2006 4:34pm
CJColucci (mail):
Randy R.
Never underestimate inertia. Statutes fall into desuetude (or are even declared unconstitutional) all the time and nobody bothers to repeal them. In my home state, for example, adultery is still, technically, a misdemeanor, and the consensual sodomy law remains on the books even though it was declared unconstitutional by our highest court in 1980. The criminal code was comprehensively revised in 1967. Probably these "crimes" will remain on the books until the next comprehensive revision.
3.30.2006 4:43pm
josh:
I agree with Brian that this violates equal protection (denying state benefits to out-of-staters based on citizenship). More importantly, I think, is that it has no relevance to the issue of federalism Carpenter raises.

"A state need not recognize a marriage that violates its own public policy. There has long been a public policy exception to the full faith and credit clause." [This is a quote from Sunstein, but I can't figure out how to attach the url]

The Massachusetts court didn't need to rule this way to protect anyone from "evasion" marriages. Family law has long held that states need not recognize marriages in other states.
3.30.2006 4:47pm
keith_hilzendeger:
Rules restricting marriage under state law to state residents don't impinge on the privileges and immunities of a newly arrived state resident, and are thus consistent with Saenz v. Roe, 526 U.S. 489 (1999). The Massachusetts law at issue here allows out-of-state residents to marry in Massachusetts only if they intend to make Massachusetts their permanent home. Thus, it treats all residents the same, whether they have lived in Massachusetts for one day or a hundred years.
3.30.2006 5:04pm
CDebateAdmin (www):
This seems like a perfectly rational decision by the SJC. Kudos to the justices.
3.30.2006 5:05pm
Kovarsky (mail):
This is not an equal protection issue. It's a privileges and immunities issue. "out of staters" are not a protected class.
3.30.2006 5:19pm
Bryan DB:
Thanks everyone. I agree with the "out of staters are not a protected class." It seems like there's an easy enough workaround for the truly in love who want to get married: Set up a residence in MA, get a driver's license, get married, leave. With a month-to-month lease you could even get residence cheaply.
3.30.2006 5:31pm
Bryan DB:
And of course, Kovarsky, I was hesitant to invoke P&I, given the rarity with which it is invoked by others.
3.30.2006 5:32pm
Kendall:
I think its a wonderful, totally rational, clearminded decision. It does however bring up again the specter of the debate over the FMA. Certainly the main concern of FMA supporters was either "another massachusetts decision" or the out of state scenario. Now more and more states inclined to "protect the definition of marriage" have passed constitutional ammendments banning gay marriage, Massachusetts has defeated an attempt in the legislature to ammend the state's constitution (and thus invalidate the SJC's descion) and states like Connecticut are voluntarily granting some rights to gay couples. What exactly is the rationale for the necessity of a federal marriage ammendment currently?
3.30.2006 9:28pm
David Matthews (mail):
"The fact that some 6,000 gay couples are now married in Massachusetts guarantees that some of them will move out of the state and ask their new states to recognize their marriages, or at least ask that their marriages be recognized for some purposes (e.g., in a custody or property dispute). These cases will raise different, and much harder, questions than the one disposed of today."

Well, yeah. That's why, no matter what, there will have to be a federal decision, eventually, I'd think. I'm wondering also about "benefits" rather than "custody" or "property." Would Nebraska, for example, have to recognize a Massachusetts same-sex marriage when it comes to employer-provided health care, assuming that the couple moved to Nebraska many years after having been married in Massachusetts?

My question about benefits also carries a practical concern, as regards to polyamory, which we keep hearing is the logical "next consequence" of same-sex marriage. My thinking is that, since I have really good health care benefits, and most of the other folks in my town have none, if/when polyamory is allowed as a necessary consequence of same-sex unions, couldn't I just declare everybody in town my "partner" and put them all on my policy at a flat-rate of $250/month for the lot of them? Since there are probably 150 uninsured people over the age of 18 in my town, if I charged them each some small pittance like $20 per month to be my "spouse", I could clean up big time.

The scenario is a bit tongue-in-cheek, but it seems to me to point out a very logical plateau on any supposed slippery slope. Why not just define marriage as a binomial relationship between adults? That is, any one adult person may choose any other one adult person as one's spouse, as long as that other one person makes the same (reciprocal) choice. Seems that this should answer the arguments about stability, as well as those about fiscal accountability, and freedom of association.
3.30.2006 10:15pm
Bob Van Burkleo (mail):
David,

First, the state doesn't 'marry' people - it just licenses a contract in support of marriage. That's one issue even 'the other side' agrees on when asked 'Does marriage come from the state' they will say no. Might seem like a subtle difference but with your example its important.

States license a contract that is designed around a citizen being in exclusive contract with another citizen to support and aid in stablizing the long term pair-bonding that is an innate part of human nature and rights. Even those of a polygamist bend already have license to this contract with someone they would actually like to 'build a life with' regardless if they subsequently have more spouses. Citizens who can reasonably only pair-bond with the same gender just want the same access as any citizen.

People wanting access to a totally new contract designed to support more than 2 cosignees, or changing the existing one so it will still function with the more common situation of the male just wanting to non-exclusively to hold contracts with more than one spouse are interesting concerns but really have nothing to do with the issue of all citizens having reasonable equal access to license the existing contract in its inherent 2 person exclusive form. One situation is just changing the licensing restrictions so that the two spouses can use the existing contract, which is functionally gender neutral, the other asking for functioning of the contract to be changed in basic ways e.g. the husband in a traditional biblical style polygamous marriage is dying - who can make decisions for him? The women aren't in contract with each other, only with him. When he dies and the state allows his business license to pass on to his spouse who does it go to? The wives have no legal relationship, the license can't be divided, it can't be sold only relinquished to the state. Are the wives suddenly now 'partners' even though they weren't before the husband died? Lots of fun questions.

And as to your concern about health insurance if such abuse occurred those businesses would probably do like my business - we give the employees access to health insurance but its on their dime, we don't specifically subsidize it other than offering the plan (and a bit of overhead payments for total number of people in the plan) - they pay for all of their dependents. People would just 'unbundle' the health insurance costs and pay it as salary.
3.30.2006 11:52pm
Jamesaust (mail):
""The fact that some 6,000 gay couples are now married in Massachusetts guarantees that some of them will move out of the state..."

The 'trigger scenario' for frontpage scandal is likely to be much more emotional. Something more like a nice lesbian couple on a cross-country vacation ending up in a horrible automobile accident in, say, Nebraska, where one spouse needs to undergo surgery and some official of the hospital refusing "to recognize" any authority of the other spouse under color of Nebraska's constitutional ban on same-gendered marriage.

Exactly at what point does a State not have any particular interest in denying another State's marriages and who determines that? Is this a states' rights issue? Can it be regulated by Congress via interstate commerce? Is it a priviledge and immunity flowing from U.S. citizenship a la Edwards v. California?
3.31.2006 12:46am
Phutatorius (mail) (www):
What troubles me about this decision is the lengths to which both Justice Spina and Chief Justice Marshall went to avoid engaging the obvious Arlington Heights invidious discrimination argument that plaintiffs and amici raised.

Governor Romney has trashed the Goodridge decision from the outset. He made no bones about his intentions in cracking down on clerks' enforcement of the 1913 statute: he wanted to contain same-sex marriage within Massachusetts. Shoot — he's basically campaigning on this point.

The Internet is thick with press reports in which Romney made his intentions known: he doesn't want same-sex couples to marry, and he acted "appropriately," by instituting all these additional controls to bring the 1913 law out of enforcement limbo and threatening clerks with administrative and even criminal action if they didn't comply. (This is the same guy who, by the way, supports legal provisions by which persons may assert a freedom of conscience to deny adoptions to same-sex couples, and to avoid employment repercussions if they refuse to do stem-cell work. But if you're a marriage clerk in Provincetown who "conscientiously objects" to turning away same-sex couples from Connecticut . . . well, he'll fire you and maybe prosecute you.)

The law is clear in Massachusetts: government action against same-sex couples because you don't think they should be able to marry is discrimination. Romney not only discriminated — he bragged about it while he was doing it. And now that he's won this case, he's bragging some more. "Look what I did, America! I saved the Olympics and screwed over same-sex couples! Elect me President!"

Romney can say what he wants about same-sex couples. He just can't make it a basis for government policy restricting access. I don't disagree with Dale's position that this was a prudent ruling, from a federalism standpoint (and from the standpoint of scaling back C.J. Marshall's security detail). I just think that it was the wrong ruling. And I can't help but wonder whether the War on Judges is now resulting in "reverse judicial activism" — by which judges have to avoid certain slam-dunk legal outcomes in order to preserve their legitimacy with a citizenry that wouldn't support them.

To some extent judges always have to be careful, lest their rulings get so far ahead of the public that executives (Jeb Bush, anyone?) feel empowered to defy them or legislatures take action to strip them of their jurisdiction. Or there's a public backlash that leads to [more] "Justice Sundays." Fine then, but if the people with the torches and pitchforks beat the judiciary into a complete retreat, then what's the point of having it?

I'm interested to know other people's thoughts on how this decision fits into this paradigm? Is this an act of judicial retreat? An appropriately measured decision? I obviously have my view . . .
3.31.2006 1:29pm
Huggy (mail):
What's funny about all this is how willing you all are to give up your God given free will to the State. God said use your free will. Bet you all want to be knighted by an unattractive old woman with an effeminate son too. - grin - Just kidding.
3.31.2006 2:29pm
Hovsep Joseph (mail) (www):
I don't think this decision seems really all that controversial. The only controversy was that the motivation for the original 1913 law seems dubious today and probably would not have passed if it were brought up for a vote. I'd guess this law will eventually be changed legislatively, albeit after Romney has left office.

The controversial case will be the one Prof. Carpenter alludes to. For example, its probably safe to assume that Eliot Spitzer will be elected the next governor of New York. He has gone on record as New York's AG that same sex marriages performed in MAssachusetts should be recognized by New York. So, its only a matter of time before one of those Boston couples gets relocated to Manhattan.

Regarding Jamesaust's questions, it seems to me that in the nearterm all the action will be at the state level. In a state where there is not a constitutional amendment barring recognition of out-of-state same sex marriages (I don't think many states actually fall into this category anymore), state courts considering the issue would still probably follow the rule New York courts would follow: recognize out-of-state marriages unless it would be abhorrent to the state's public policy (which is consistent with federal full faith and credit jurisprudence and, of course, the federal DOMA). New York courts, for example, have only refused to recognize polygamous unions and certain kinds of incest. New York courts have recognized a Rhode Island marriage between a man and his neice, a Georgia common law marriage and a Georgia marriage involving a 15-year old girl, all of which would not have been legal if performed in New York.
3.31.2006 3:38pm
raj (mail):
Bryan DB:

If a State can't discriminate on welfare benefits because someone just moved in (I'm thinking of the case involving CA), how can they discriminate with regard to their marriage law?

The CA analogy is distinguishable. If someone just moves into CA, he (or she) might be eligible for welfare benefits from CA without a waiting period, but when he moves out of CA, he is no long eligible for welfare benefits from CA.

On the other hand, if a same-sex couple comes into MA from a state that does not recognize same-sex marriage, for the purpose of getting married, and with the intention of not continuing to remain in MA but to return to the other state, the presumption is that the couple would still be married when they return to the other state. The MA law would cut that off. The reason that the CA analogy is distinguishable is that, if the same-sex couple were to come to MA from a state that does not recognize same-sex marriage, but with the intention to reside in MA, they could get married immediately. And that would be the case, even if the couple, after residing in MA, decided to move on to the same or another state that also does not recognize same-sex marriage.


Randy R.

Interesting that you would say this law is an "embarrasment." ... Still -- the law was passed by a majority of the state legislature back then. And it has never been revisited or repealed since then. So a great many people during the last 100 years have found it NOT to be an embarrasment. Why is that?

Why haven't a great many people during the last 100 years not found it to be an embarrassment? Probably because for most of that time virtually nobody knew of the law. From what I have read, it has never been enforced.


David Matthews

My thinking is that, since I have really good health care benefits, and most of the other folks in my town have none, if/when polyamory is allowed as a necessary consequence of same-sex unions, couldn't I just declare everybody in town my "partner" and put them all on my policy at a flat-rate of $250/month for the lot of them?

Almost certainly not. And even if you tried, it is likely that the insurer would change its policy to deny that. BTW, the insurer could change the policy such that each additional insured under the policy would be charged at a rate of US$250. That would mean your premium would be (US$250 * 150) + US$250 = US$37,750/month. (The first addend is for the 150 uninsured people in your town, the last term is for your coverage for yourself.)

The scenario is a bit tongue-in-cheek, but it seems to me to point out a very logical plateau on any supposed slippery slope.

Just to remind you, the "supposed slippery slope" from same-sex marriage to polygamous marriage is a fraud. If there is a slippery slope, the slope began when the state agreed to recognize relationships of opposite sex couples (so-called monogamous "marriage") not when the state agrees to recognize relationships of opposite-sex couples (so-called "gay marriage") on the same basis that it recognizes relationships of same-sex couples.

BTW, you might want to look up the US SupCt decision in the 1879 case of Reynolds vs. US. The relevant portion of the case are available over the internet. The court in that case held that the US gov't could forbid polygamy in the Utah Territory. Towards the end of the relevant portion, the court discussed whether the federal gov't's prohibition, acting under its plenary power in the Utah territory, violated equal protection (they didn't refer to it in so many words, but the concept is obvious), and the court held that it didn't.
3.31.2006 6:22pm
Joshua76 (mail):
The equal protection and privileges and immunities arguments are given much more strength if one views the right of marriage as a fundamental right - or at least, something with the indicia of a fundamental right. And if one deems traveling citizens who are homosexual as a class that is akin to a suspect class, then some form of heightened scrutiny should be called for. Certainly this makes sense if one takes Ely's process-based theory for when courts should apply heightened scrutiny to such laws.

"But the instant legislation runs afoul of the equal protection clause...We are dealing here with legislation which involves one of the basic civil rights of man. Marriage...[is]...fundamental to the very existence and survival of the race." Skinner v. Oklahoma. See also Loving v. Virginia: "Under our Constitution, the freedom to marry, or not marry...with the individual and cannot be infringed by the State."

I would think that if a court were to take these two factors into account together, ala Plyler v. Doe, then the law should probably have some form of heightened scrutiny applied to it (as certainly it would under Loving v. Virginia since the law was originally another anti-miscegenation law), and would under such an analysis probably violate either the equal protection clause or the privileges and immunities clause of the fourteenth amendment.

From a political standpoint, one certainly has to love the irony when Republicans call for a constitutional ban on gay marriage. If Republicans want to change the Constitution to not allow for this type of equal treatment, then perhaps they should have never (probably illegitimately) rushed to pass the fourteenth amendment in the first place.
4.1.2006 6:02pm