March 30, 2006

Mass. Supreme Court Obeys the Law

Marc Comtois

Lookee here, the Massachusett's Supreme Court has decided that--yes indeed--the State can't legally marry couples if that marriage would be illegal in the state in which the couple permanently resides:

In an eagerly awaited landmark decision, the state's highest court ruled today that Governor Mitt Romney and Attorney General Thomas F. Reilly had the authority to invoke a 1913 state law that Massachusetts used to block out-of-state gay couples from marrying here when same-sex marriage became legal in 2004.

The Supreme Judicial Court upheld the 1913 law when it was used to block same sex-couples from Connecticut, Maine, New Hampshire, and Vermont, because gay marriage is prohibited in those states.

The court, however, did not rule on the claims of the couples from New York and Rhode Island because state laws there are unclear about whether same-sex marriage is barred. The court sent the case back to Superior Court Judge Carol Ball, who upheld the 1913 law that was appealed, to determine on an "expedited basis" when same-sex marriage is legal in those two states.

The Supreme Judicial Court said the state did not overstep its bounds, though a lawyer for eight lesbian and gay couples from outside Massachusetts had argued in October that the officials had dusted off a 48-word law that had "sat on the shelf unused for decades" in a blatantly discriminatory and unconstitutional ploy.

The law, whose constitutionality was defended before the court by Reilly's attorneys, says Massachusetts cannot marry an out-of-state couple if their marriage would be void in their home state. Romney had said he did not want Massachusetts to become the "Las Vegas of same-sex marriage."

Of course, it's not so clear about Rhode Island because Rhode Island apparently has no clear-cut law banning gay marriage. What that means is that when the law was written all those years ago, the authors didn't think they had to define that marriage was between a man and a women. They kind of took it for granted. The sums it up like this:
Rhode Island Marriage/Relationship Recognition Law
* Licenses marriages for same-sex couples? No explicit prohibition.
* Honors marriages of same-sex couples from other jurisdictions? No explicit prohibition. The state attorney general issued a statement in May 2004 that stated the office [of the attorney general]s review of Rhode Island law suggests that Rhode Island would recognize any marriage validly performed in another state unless doing so would run contrary to the strong public policy of this state. Public policy can be determined by statute, legal precedent, and common law. This is not a binding opinion and the attorney general noted that this question will most likely be answered by the courts.
* Any form of statewide relationship recognition for same-sex couples? No.
Thus, there is a legal avenue open to "define" marriage, much like Massachusetts. (I would note that the official "Marriage Requirements in the State of Rhode Island" (
PDF) mentions "Bride" and "Groom" not generic "spouse 1" or "spouse 2".) I just hope that Rhode Island voters are the one's who decide, not the courts.

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Marc, why exactly would you prefer that same-sex civil marriage rights be put to a statewide referendum? Do you not view the courts as a legitimate avenue for a challenge to the current interpretation of Rhode Island state law?

I am a gay man, and having my civil rights put up for a statewide vote makes me feel more than a bit nervous. The issue, however, is not one of winning or losing. If same-sex civil marriage became a statewide ballot issue, Rhode Island would have to endure months of negative attacks, rhetoric, and scare-mongering from both sides. I am loathe to see my right to marry become more of a political football than it already has been, especially in my home state.

As for the recent decision by the Massachusetts SJC, I am of mixed opinion. While I feel that the SJC was correct in its interpretation of the statutes, I am disappointed (though not surprised) that the Romney administration chose discriminate against same-sex couples by suddenly choosing to enforce an antiquated law that had been all but ignored for decades. While Gov. Romney's rhetoric about not wanting to be "the Las Vegas of same-sex marriage" plays well to the press and to potential Republican presidential primary voters, it does little to address the substantive debate occuring about the right of same-sex couples to civil marriage.

It will be very interesting (both politically and legally) if the Massachusetts courts determine that they cannot deny marriage licenses to same-sex couples from New York and Rhode Island, which currently have gender-inspecific marriage laws. New York has its own same-sex marriage case that is due to go before that state's highest court. And New Jersey, which does not have its own version of Massachusetts' 1913 law, also has a same-sex marriage case before its highest court. If New Jersey were to allow same-sex marriage, the doors would more than likely be open for couples to challenge the discriminatory laws banning same-sex marriage in their home states. That is when things could get very interesting.

Posted by: Ethan / Jack at March 31, 2006 12:58 AM


Equal recognition of a relationship type to another of a substantively different form is not a civil right, nor is its denial invidious discrimination. Similarly, the courts should surely be available to "interpret" the law, but same-sex marriage advocates have all along desired for them to manipulate — and thereby change — the law, which is a legislative function.

Only by emptying our minds of every bit of historical, policial, legal, and social precedent is it possible to believe that Rhode Island law was created to leave open the possibility of members of the same sex entering into the form of relationship known as "marriage."

Posted by: Justin Katz at March 31, 2006 6:08 AM


First, some clarification of terminology that I used and you questioned: Same-sex civil marriage is indeed a civil right. It is a right bestowed by the state unto its citizens, the very definition of "civil right." If, in your book, it is not a civil right, then what is it? Secondly, denial of civil marriage to same-sex couples is indeed discriminatory. I never said that it was invidious. I don't see the State of Rhode Island as evil or conniving simply because it does not recognize same-sex marriages. It is quite possible - and quite common - for a state or society to discriminate without being invidious. But these are relatively minor points.

I am by no means a lawyer, but I do follow the same-sex marriage debate very closely because of its impact on my life.

I agree with you: same-sex couples are, obviously, substantively different from opposite-gender couples. But does difference in gender merit prohibition of equal recognition under the law? Why, exactly, does a same-sex couple not merit equal recognition in society?

Your argument is one of precedent for the current opposite-sex interpretation. But precedent alone is not enough for a just decision, especially in an area such as societal and legal recognition of homosexual couples, which has undergone drastic change within the last 40 years. Beyond precedent, what are your arguments for refusing to open the institution of marriage to same-sex couples?

In the State of Rhode Island, the law is silent regarding gender requirements for marriage. Plaintiffs are not asking the court to create a new law; they are asking for rights that they see as guaranteed to them by the state Constitution that the state is choosing to discriminatorily withold. Despite the rhetoric of those who oppose same-sex marriage, this is not a new law; this is interpretation. Fine line, you say? Fair enough, but that's one role of the courts: to interpret the statutes and judge their constitutionality.

On a more personal (and far less legal) level, I find it very frustrating when society and the state refuses to recognize my relationship with a man; the state is telling me that I do not deserve the same rights as everybody else. I am lucky that I live in one of the more tolerant and accepting states in the nation and I am able to be "out" to my immediate family and friends. (Keep in mind, "out" does not mean "flaunting" or "flaming." It means that I can say things like "My boyfriend and I" without being afraid). But I still do not share in the same rights and privileges that heterosexuals do. It boggles my mind when I see laws or constitutional amendments that single out an entire class of people (in large part because a big segment of the population is unconfortable with their sexual partner) and say "you, over there: you can't have this right." How is this acceptable?

But enough rant from me! I'm sure you can tell that this is a big issue for me - it's a matter of respect and recognition.

Posted by: Ethan / Jack at March 31, 2006 2:47 PM


But the state (generically speaking) doesn't associate various rights and privileges with marriage for the purpose of bestowing "respect and recognition." I mean this with absolutely no malice, but as one who's argued this issue backwards and forwards and written extensively about it, I find your commentary to be disjointed. Firstly, you've used "civil right" in both the clinical "a right that is civil" sense and in the 1960s equality rhetoric sense. Are you cognizant of the difference?

Secondly, you simultaneously acknowledge that "same-sex couples are, obviously, substantively different from opposite-gender couples" and express bogglement that the state is simply, without cause, declaring "you, over there: you can't have this right." You shouldn't need to ask me to explain why I can both oppose same-sex marriage and answer "no" to your question: "But does difference in gender merit prohibition of equal recognition under the law?" Indeed, too many same-sex marriage proponents get away with pretending that they simply can't imagine a more comprehensive argument against their position.

But if you want my answer to your question about why "a same-sex couple [does] not merit equal recognition in society," this would be a good place to start.

Posted by: Justin Katz at April 1, 2006 12:48 PM

Ethan / Jack,
As you can see, Justin has thought long and hard on this issue. For myself, I simply can't find the logic in having to rely upon a court to define what marriage is when it has heretofore been assumed to be a something between a man and a woman. The case of civil unions and equality in legal rights, etc. are a different issue than marriage.

In addition to the link provided by Justin, I'd also point you to this thoughtful, deeply philosophical (and long) piece by Lee Harris. Yes, I'm copping out a bit, but Harris comes close to representing my line of thinking ( probably better than I did a couple years ago).

The short of it is that, like Justin (if you read his aforementioned post) I am most concerned with the consequences that a redefinition of marriage will have on the children of that will be the non-choosing portion of these unions. Like Harris (and Justin), I'm wary of messing around with an institution that has worked well so far.

Again, I encourage you to read the whole Harris piece, but if you're short on time, you can get his point by reading the last section (and it may pique your interest to read it in its entirety).

As for why I'd prefer a public vote over courthouse interpretation, Harris writes of what he calls a "visceral code" that most "Middle Americans" concerning marriage and other things and counterposes that with the relativistic views held by the intellegentsia and thinking class. It is in that difference that you'll find my reason for trusting the public over the courts.

Posted by: Marc Comtois at April 1, 2006 6:41 PM