Daily Kos

MA SC to out of state same-sex couples: Drop Dead

Thu Mar 30, 2006 at 10:19:29 AM PDT

The Massachusetts Supreme Court ruled that non-resident couples who are ineligible to marry in their home states are ineligible to marry in Massachusetts, based on a 1913 law intended to prohibit interracial marriages.

http://www.cnn.com/...

Court limits gay marriages in Massachusetts
Same-sex couples from out of state can't marry if they don't stay

Thursday, March 30, 2006; Posted: 11:34 a.m. EST (16:34 GMT)

BOSTON, Massachusetts (AP) -- Same-sex couples from states where gay marriage is banned cannot legally marry in Massachusetts, the state's highest court ruled Thursday.

The Supreme Judicial Court, which three years ago made Massachusetts the first state to legalize gay marriage, upheld a 1913 state law that forbids nonresidents from marrying in Massachusetts if their marriage would not be recognized in their home state.

"The laws of this commonwealth have not endowed non-residents with an unfettered right to marry," the court wrote in its 38-page opinion.

Rethuglican Governor Mitt Romney crowed "We don't want Massachusetts to become the Las Vegas of same-sex marriage."

This is based on a 1913 miscegenation law that had been unused for decades.  There are all sorts of laws like this on the books in Massachusetts.  For example, all men are required to bring rifles to church on Sunday.  What happens if you don't bring a gun to church on Sunday?  Are Jewish or Muslim men required to attend church on Sunday as well as going to a synagogue or mosque?

Will Mitt use the power of his office to arrest you?

Poll

What should Mitt do if a Muslim man brings a gun to church on Sunday?

44%15 votes
8%3 votes
11%4 votes
11%4 votes
23%8 votes

| 34 votes | Vote | Results

Tags: Gay rights, Massachusetts, Mitt Romney, Marriage, Miscegenation (all tags) :: Previous Tag Versions

Permalink | 62 comments

  •  It's sad but the court is probably correct (2+ / 0-)

    that the state can enforce it iff they wish.

    Romney's out of there soon, and if the legislature wanted to they could have struck the law down.

    Everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users, and on the buttocks... -- William F. Buckley, Jr

    by tiponeill on Thu Mar 30, 2006 at 10:21:30 AM PDT

    •  We end up with a lot of laws like this; (0+ / 0-)

      how many states had bans on sodomy and oral sex that were only on the books because a) they'd been forgotten, or b) legislators would be too embarassed to bring it up in session?  Of course, the religious Right would occasionally dust them off to arrest gays, but seriously: our lawbooks are full of this old crap.

      Especially Louisiana.  Have you seen our code of laws?

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Thu Mar 30, 2006 at 10:30:32 AM PDT

      [ Parent ]

    •  I agree (1+ / 0-)

      Recommended by:
      awakenow

      This is not a case of activist judges making new laws anymore than the original case allowing the gay marriages was. They judges are just enforcing the laws as they are written and so I think that the ruling is fair. The people need to change the law if they think it is a bad law, which I agree it probably is.

      We hope your rules and wisdom choke you / Now we are one in everlasting peace -6.63, -6.97

      by amRadioHed on Thu Mar 30, 2006 at 10:30:35 AM PDT

      [ Parent ]

      •  Yes, but (0+ / 0-)

        the Massachusetts sodomy law was itself struck down by the state's Supreme Court--way back in 2002.

        Note: It wasn't the legislature that voided the silly old law; it was the court.  The same court that won't void this silly old law.

  •  You're right (0+ / 0-)

    Laws should have a lifespan, if only because a law that made sense 100 years ago might not be appropriate today.  If it is still relevent when it is due to expire, then it can be renewed.

    January 20. 2009 cannot come soon enough.

    by Crisis Corps Volunteer on Thu Mar 30, 2006 at 10:26:59 AM PDT

  •  It's a law that's already on the books (3+ / 0-)

    You can't really tar Romney with a law that's been on the books since 1913.  That goes back to before he was born, much less before he ever claimed Massachusetts residency despite having paid Utah taxes.   (MA people will remember what I'm talking about.)

    The Court is no longer in a position to determine whether the law is fair, only whether it is legal.  Determining what is fair is judicial activism, m'kay?

    this message is intended to inform. any annoyance, abuse, threat, or harassment is solely in the perception of the reader, not the intention of the poster.

    by horsewithnoname on Thu Mar 30, 2006 at 10:28:20 AM PDT

    •  You certainly CAN tar Romney (4+ / 0-)

      it is a law which has been on the books, but completely unenforced for decades ( since segregation) - he purposely had it hunted down, dusted off, and enforced to bash gays.

      You can't tar the court, but you certainly CAN tar Romney

      Everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users, and on the buttocks... -- William F. Buckley, Jr

      by tiponeill on Thu Mar 30, 2006 at 10:34:14 AM PDT

      [ Parent ]

  •  The SJC opinion (0+ / 0-)

    is per curiam and remarkably brief:

    BY THE COURT. The orders denying the plaintiffs' motions for preliminary injunction in these cases are affirmed. A majority of the Justices also agree that, as to the plaintiffs who reside in Connecticut, Maine, New Hampshire, and Vermont, a judgment for the defendants shall enter in the Superior Court because same-sex marriage is prohibited in those States. As to the New York and Rhode Island plaintiffs, their cases shall proceed in the Superior Court, on an expedited basis, for a determination whether same-sex marriage is prohibited in those States.

    You'll immediate note the absence of any rationale.

    There are two concurrences and one dissent (by Justice Ireland).  I don't have the time to read and report on them just now.



    •  Ireland's summary of his dissent. (2+ / 0-)

      Recommended by:
      Adam B, FaithAndReason, pico

      I write separately for five reasons. First, I believe that an appellate court must use a neutral, principled approach to decide every case before it. Second, the court articulated such a neutral, principled approach in Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Goodridge), holding that the liberty and equality provisions of the Constitution of Massachusetts prohibit the use of gender distinctions with respect to marriage. Third, Goodridge removed gender as an impediment to marriage (just as Loving v. Virginia, 388 U.S. 1 [1967], removed race as an impediment), and I believe that the rule of gender neutrality applies to the entire marriage statute. Fourth, principles of comity do not require rejection of the marriage license applications of nonresident same-sex couples. Finally, the Commonwealth's resurrection and selective enforcement of a moribund statute, dormant for almost one hundred years, not only violates the "spirit" of Goodridge, as stated by the judge below, but also offends notions of equal protection. It is, at its core, fundamentally unfair.


    •  Chief Justice Marshall's concurrence (2+ / 0-)

      Recommended by:
      Adam B, bam101

      (joined by Cordy and, in part, by Greaney)

      The first principle of statutory construction is well known. We construe statutes according to the Legislature's intent expressed in the words of the statute read in light of "the ordinary and approved usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Applying this established principle, I conclude that the word "prohibited" in § 12 refers only to marriages that are expressly forbidden by another State's positive law -– that is, by constitutional amendment, statute, or controlling appellate decision. See Webster's Third New Int'l Dictionary 1813 (1993) (defining "prohibit" as "to forbid by authority or command"); Black's Law Dictionary 1228 (7th ed. 1999) (defining "prohibit" as "[t]o forbid by law"). Where no "law," "authority," or "command" expressly bans an action, we cannot conclude that it is "prohibited." Thus, G. L. c. 207, § 12, plainly requires the Commonwealth to refrain from issuing marriage licenses to any out-of-State couple whose nuptials would be directly prohibited in their home State, and, conversely, to issue marriage licenses and solemnize marriages in all other cases. If the Legislature had meant a broader use of the term "prohibited," it knew how to make that intention clear. See, e.g., G. L. c. 65C, § 21 (e) (applying certain death tax provisions to "the estate of a nonresident decedent only in case the laws of the domiciliary state contain a provision, of any nature or however expressed, where the commonweath is given reasonable assurance" that it will collect death taxes from the domiciliary State [emphasis added]).

    •  Translation please? (0+ / 0-)

      Does, or does not, this decision affect marriages / civil unions in VT and NH?

  •  Odd laws like this (2+ / 0-)

    Recommended by:
    mbair, bam101

    are littered in every state's lawbooks.

    (As a non-legal expert) I'd guess most states and courts ignore them until/unless someone (with an axe to grind) makes a federal case (or in this case, a "state" case) out of them.

    Sounds like the SC made the legally correct decision, but given the fact that same sex marriages are legal in MA, I don't think it would be too hard to get some referendum to overturn that old law.  However, I'm a quite a few miles removed from MA, so my take on the legal and social climate there is to be taken with a grain of salt.

    •  i dont think its an odd law at all (3+ / 1-)

      Recommended by:
      mbair, bam101, Robert in WV
      Hidden by:
      Christin

      there is nothing odd in a law that says "if you can't get married in your home state, you can't get married here" to me

      •  Funny, the Loving Family would have considered (0+ / 0-)

        Recommended by:
        silence

        it, if not "odd", certainly "bigoted".

        The SJC may be technically correct in it's decision, but that doesn't mean that the purpose of the law - both in it's original incarnation and now in it's resurrected form, was simply to discriminate against people.

        More than "odd".

        Everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users, and on the buttocks... -- William F. Buckley, Jr

        by tiponeill on Thu Mar 30, 2006 at 10:39:25 AM PDT

        [ Parent ]

      •  See the dissent above: (1+ / 0-)

        Recommended by:
        TrueBlueMajority

        Finally, the Commonwealth's resurrection and selective enforcement of a moribund statute, dormant for almost one hundred years, not only violates the "spirit" of Goodridge, as stated by the judge below, but also offends notions of equal protection.

        It's an odd law because it's been collecting dust on the shelf, one of those remnants of a former attitude towards a specific marriage issue that no longer exists.

        I'm not disagreeing that the other judges were 'technically' right, but I think Ireland points out the elephant in the room, which is the law's sudden reappearance and newly aligned enforcement.

        Otherwise agreed with everyone above that the best option is to strike the law from the books.  Much more permanent that way.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Thu Mar 30, 2006 at 10:43:56 AM PDT

        [ Parent ]

  •  And its a correct ruling (1+ / 0-)

    Recommended by:
    bam101

    The state of massachusetts have no standing to overrule the laws of another state

    •  Quite the reverse; (0+ / 0-)

      I won't disagree that it wasn't the "correct" ruling in the judicial sense, but if marriage of non-Massachusetts residents were to take place, it would require those other states to overrule Massachusetts' law, not the reverse.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Thu Mar 30, 2006 at 10:32:47 AM PDT

      [ Parent ]

      •  no (1+ / 0-)

        Recommended by:
        bam101

        what it would be doing is saying "these people are married despite their home state's laws"  your thing is saying that a state has to claim "their not married despite the laws of a state that they're not even a resident of"

        •  No (1+ / 0-)

          Recommended by:
          TrueBlueMajority

          It would be saying "these people are married."  Massachusetts has to follow two sets of laws: those of the federal government and those of Massachusetts.  They are perfectly within their legal jurisdiction performing marriage to out-of-staters.

          It would require the home state to reject those claims.  Ergo, it would require the home state to overrule Massachusetts' law.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Thu Mar 30, 2006 at 10:45:46 AM PDT

          [ Parent ]

          •  and this law (1+ / 0-)

            Recommended by:
            bam101

            makes it so that other states don't have to do that.

            •  Correct; (1+ / 0-)

              Recommended by:
              TrueBlueMajority

              although it's bound to come up eventually.  What we're seeing is part of a larger set of rumblings that will eventually lead to DOMA being challenged in front of the Supreme Court.  Probably still a few years down the road, but with a greater number of married gay couples, both in this country and internationally, the legal contradictions are going to continue bubbling towards the surface until the whole system is officially addressed.

              Saint, n. A dead sinner revised and edited. - Ambrose Bierce

              by pico on Thu Mar 30, 2006 at 10:51:14 AM PDT

              [ Parent ]

            •  So, in other words (0+ / 0-)

              it's a copout on MA's part.  Why don't they force the issue to the SC?  It's going to wind up there sooner rather than later anyway.

              And dollars to donuts, my bet is that the SCOTUS will use the FF&C clause to strike down MA's same-sex marriages and ban them federally. Sure, that's legislating from the bench, but IOKIYAR.

    •  Except for the Constitution (1+ / 0-)

      Recommended by:
      bam101

      which requires states to honor one another's laws...

      Article. IV.

      Section. 1.

      Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

      Full faith and credit, meaning if someone is married in Mass all states have to recognize it.  Should a Mass resident legally get married in a same-sex marriage and move, the other state has to recognize it.  Except they won't under DOMA which again is clearly unconstitutional.

      That said, the rulling was corect due to the law on the books, as old as it may be.

      I honor that service, and I respect [McCain's] many accomplishments, even if he chooses to deny mine. Obama 6/3/08

      by AUBoy2007 on Thu Mar 30, 2006 at 10:38:41 AM PDT

      [ Parent ]

      •  which has never really applied to marriage (0+ / 0-)

        I dont know if there's been a supreme court case on it, but its been generally accepted that civil laws such as marriage aren't applicable

        •  Miscegenation laws (0+ / 0-)

          Loving v. Virginia established marriage as a right, and struck down miscegenation laws on the books in several states.

          January 20. 2009 cannot come soon enough.

          by Crisis Corps Volunteer on Thu Mar 30, 2006 at 10:46:53 AM PDT

          [ Parent ]

        •  You are correct; (2+ / 0-)

          Recommended by:
          TrueBlueMajority, Desroko

          the recognition of other states' marriage laws is purely by tradition.  I don't think it's ever been codified legally.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Thu Mar 30, 2006 at 10:46:54 AM PDT

          [ Parent ]

        •  Generally accepted? (0+ / 0-)

          By whom? I have to say, I've never once heard it said that civil laws aren't applicable.

          I'll let you know upfront that it'll take a whole hell of a lot (like a Supreme Court case) to convice me of that.  Being gay myself, I have a vest interest in this.

          I honor that service, and I respect [McCain's] many accomplishments, even if he chooses to deny mine. Obama 6/3/08

          by AUBoy2007 on Thu Mar 30, 2006 at 10:49:57 AM PDT

          [ Parent ]

          •  essentially (0+ / 0-)

            the entire historic legal tradition of the united states has tended to believe that marriage is excluded.

            for some reading on it:
            http://en.wikipedia.org/...

            The Supreme Court of the United States has long recognized a "public policy exception" to the clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage (such as polygamy, miscegenation or consanguinity), civil judgments and orders, criminal conviction and others.

        •  And hopefully won't apply to abortion either. (0+ / 0-)

          n/t

          •  i'm not sure how it can (0+ / 0-)

            since there isn't really any way to "not recognize" an abortion.  part of that clause is meant to say that you can't be found guilty of breaking a law in one state if you did the action in a state in which the action was legal.

            For example, if someone from outside massachusetts has a gay-marriage in massachusetts, and then moves to Texas, texas can't, say, arrest them for having a gay marriage, but they can refuse to recognize it.

            •  It could be applied if a state claims (0+ / 0-)

              ownership of its citizens.  So South Dakota's ban bans it's residents no matter where they go.  Oddly, the Federal government has been attempting to assert this "ownership" over US citizens who have businesses overseas that are considered criminal in the US.  

              There is a particular case where two American guys moved to Antigua and set up an online gambling operation that was not regulated by the US gambling powers.  The operation was perfectly legal in Antigua and they were happy to have the money running through their banking system.  The feds did everything the could to shut down the operation, but failed every legal test of international law.  In the end, they managed instead to get warrants for both men's arrests in the event that they ever set foot in the US again on the premise that because they were US citizens they were subject to US law whereever they went in the world.  Again this was a warrant for a crime that was technically not committed by either guy because where they were running their business it was completely legal.

              So there is sort of a move towards state "ownership" of citizens - that is my term for it - that is quite unsettling.  The gambling story doesn't bother people - they ignore it because they don't care about gambling - but what if you're a doctor from SD and you are also licensed in ND and you decide to cross the border to perform abortions?  Will they assert that you are a murderer under their law?  I'll bet they try.

              •  A mixed blessing; (1+ / 0-)

                Recommended by:
                inclusiveheart

                after all, we'd want the Feds to be able to crack down on American businesses that exploit workers overseas, right?  Not that they do it.  They're much happier to go after gamblers in Antigua than sweatshop owners in Southeast Asia.

                Saint, n. A dead sinner revised and edited. - Ambrose Bierce

                by pico on Thu Mar 30, 2006 at 11:36:38 AM PDT

                [ Parent ]

    •  Yes and no (2+ / 0-)

      Recommended by:
      TrueBlueMajority, pico

      Yes, Massachusetts cannot overrule the laws of another state, but when a person is in the

      If the drinking age in Massachusetts were 18, and the drinking age in Vermont were 21 (in actuality, Vermont was one of the last states to raise its drinking age), a 20-year old Vermonter could drink in a bar in Massachusetts.  

      What this law is more the case of Massachusetts having a law on the books that out-of-staters could not buy alcohol in Massachusetts if they were under 21.

      Currently, if you are a married same-sex couple, this is legally binding only in Massachusetts.  It may be legally binding in New York, which doesn't prohibit people from crossing state lines if they are ineligible from marrying in New York.  

      But it is also a legal contract, and based on the full faith and credit clause of the Constitution, a Massachusetts marriage license should (I didn't say 'is' - since it hasn't been ruled yet) be valid elsewhere in the country.

      January 20. 2009 cannot come soon enough.

      by Crisis Corps Volunteer on Thu Mar 30, 2006 at 10:44:59 AM PDT

      [ Parent ]

      •  What are you talking about? (0+ / 0-)

        I was from DC where beer was legal at 18 and in school in New York and my DC residency didn't allow me to buy beer in New York.  In New York when the age was 19 it was 19 for anyone who visited (except of course in clubs in the city where no one cared about breaking the law).

  •  Tips appreciated (5+ / 0-)

    Cheers. 27 responses so far.  This is the most responses for a diary I wrote.  Cool.

    January 20. 2009 cannot come soon enough.

    by Crisis Corps Volunteer on Thu Mar 30, 2006 at 10:50:31 AM PDT

  •  I don't think the the MA Supreme Court said (1+ / 0-)

    Recommended by:
    bam101

    "Drop Dead".  A bit of hyperbolee there to say the least. The legislature needs to change the law.  Don't beat up on the court that got you as far in your cause as it could already.

  •  doesn't 'fix' all complications (0+ / 0-)

    I agree with the other posters, that it's unfortunate that MA has this law and that to Governor has chosen to enforce it. But it doesn't solve all of the potential constitutional issues. What if Bob and Mike, MA residents, get married in Boston, and then in 3 months Mike gets a job in Austin and they move to Texas? The "full faith and credit" clause of the consitution would seem to suggest that the marriage is still valid in Texas, regardless of what laws the Texas legislature wants to pass. It's gonna be very interesting...

    car wreck : car insurance :: climate wreck : climate insurance

    by HarlanNY on Thu Mar 30, 2006 at 10:57:36 AM PDT

    •  no (0+ / 0-)

      full faith and credit doesn't apply to marriage.  Texas doesn't have to abide by massachusetts marriages, no matter what the circumstances of the marriage.  at least that has been the interpretation up to now.

      of course, some people are afraid that will change, thus why DOMA was passed.

      •  Wha???? (1+ / 0-)

        Recommended by:
        Crisis Corps Volunteer

        Or as the new state slogan here goes, "Say WA??"

        FFC most certainly applies to marriages.  I got married in AZ and now live in WA, having lived in UT, TX and OR in between.  There was never the remotest possibility that any of those states would fail to give "full faith and credit" to my marriage.

        DOMA was passed because wingnuts knew that states would have to recognize e.g. MA marriages.

  •  The judges were constrained (0+ / 0-)

    There really isn't a recognized exception for ignoring really old and seldom enforced laws.  Since the government raised the law, the judges had to consider it.  

    Ever get the feeling you've been cheated?

    by johnny rotten on Thu Mar 30, 2006 at 10:59:02 AM PDT

  •  Can't have that (0+ / 0-)

    Mitt Romney crowed "We don't want Massachusetts to become the Las Vegas of same-sex marriage."

    'Cause Vegas is suffering so greatly for its marriage policies.

  •  So... You know when things are under your nose (0+ / 0-)

    I'm really sorry, I didn't see your diary! I posted something real similar to it and now I feel pretty bad. I looked for diaries and everything and didn't see yours... which is embarrissing, mine was just under yours. Hmm... maybe they were posted around the same time?

    Anyway, I apologize!

  •  Interesting commentary (0+ / 0-)

    http://writ.news.findlaw.com/...

    Thanks to oblomov for posting this on another board.

    January 20. 2009 cannot come soon enough.

    by Crisis Corps Volunteer on Thu Mar 30, 2006 at 11:53:16 AM PDT

  •  This is awesome! (3+ / 0-)

    "Only non-resident couples who come to Massachusetts to marry and intend to reside in this commonwealth thereafter can be issued a marriage license without consideration of any impediments to marriage that existed in their former home states," the court ruled.

    "Intend to reside..." Hmmm....

    I love it!!! My husband's job loss was a serious problem for our family. We're packing up and moving to Massachusetts. We'll run a gay wedding chapel and buy up some apartment complex or trailer park to start, so that newlyweds can move right in... The first few couples married can work for us, and then we'll start an employment agency, and some more housing developments... This is a fabulous opportunity!

    Massachusetts won't be the Las Vegas of same-sex marriage. People get married in Vegas and go back home, but Mitt's inviting people to reside in his lovely commonwealth. No longer known as the Bay State, it will be the Gay State!

  •  Odd (0+ / 0-)

    The MA SJC ruled the way they did in Goodridge because there could be no second class citizenship in MA.  Isn't that what this antiquated law does ... effectively make a whole group of people (out of state same-sex couples) second class citizens?

Permalink | 62 comments