Monday, December 8, 2003

Gay Marriage: The Meaning of Massachusetts

I’m on the Legal Marriage Alliance mailing list for Washington State, and after the Massachusetts decision was handed down, someone asked:
If I interpret the decision correctly, in six months time, same-sex couples in Massachusetts will be able to marry.  How does this impact out-of-state couples?
I responded with a number of bullet points, and I’ve added a little more to them here.
  • The court said that not letting same-sex couples marry violates the state constitution and that the legislature has to resolve this in 180 days.  I don’t know what happens if that deadline comes and goes with nothing happening.  Does the court fine the legislature?
  • In Vermont, it was “resolve it or create a parallel institution,” and hence “civil unions” were created, but that’s apparently not an option provided here.
  • Hawaii and Alaska sidestepped the issue a few years ago by amending their state constitutions.  That evidently takes three years in Massachusetts, while the deadline is six months.  An amended constitution could happen anyway, but with a gap where same-sex
    marriage is legal.  Every year it takes will surely work in our favor.
  • Assuming things do progress as we would hope, this directly affects only couples who reside in Massachusetts, as the state can only grant the benefits that the state has power over.  But it’s a stepping stone to insisting on those benefits elsewhere.
  • According to an Associated Press piece (no longer available at the original site), Massachusetts state law doesn’t allow non-residents to marry there if their marriage would not be legal in the state where they live.  A little web research indicates that there is no basic residency requirement.  Given that such legal here/not legal there marriages have not been an issue for decades, this may be a law dating to miscegenation times (or earlier).  If this law is still on the books, it’s not clear what value or legal weight it has beyond being a stop sign to convince couples to not get married in Massachusetts.  In particular, does it have any effect when Massachusetts residents marry and then move elsewhere?
  • The Massachusetts marriage issue itself is not something which should go to the Supreme Court, as Massachusetts’ definition of marriage is limited to Massachusetts.  What would go to the Supreme Court is someone being denied marriage benefits in another state when they are married in Massachusetts, via a violation of the Full Faith and Credit clause of the Constitution.  Framed in terms of whether a marriage in one state should be recognized in another, regardless of who the married people are, that’s the same thing that the Supreme Court has already ruled on decades ago, regarding miscegenation (inter-racial marriages) and should be a win for us.  (But it ain’t over ’til the fat Justice sings.)
  • One potential outcome of this is likely to be a national hodgepodge: some states allowing the marriages, all states being forced to grant the benefits.  That might take decades to resolve to where the marriages could be legally done in every state.
I’ve often personally wondered why the religion card has never been played on the gay side of this puzzle before.  If MCC marries a same-sex couple, then DOMA and other laws are Freedom of Religion violations (“Congress shall make no law…”) in refusing to recognize those marriages and give the benefits accruing to them.  (Of course, non-religious performed marriages would not be covered, so it’s not a slam dunk for everyone.)

Updated on October 21, 2010
Indeed, some of that “hodgepodge” has become the case now, several years later.  Some states recognize same-sex marriages done in other states despite not being willing to do them directly.  In other cases, states which do not recognize same-sex marriages have refused to grant same-sex divorces (since that would mean tacitly “recognizing” some legitimacy of the marriage, but at the same time, Massachusetts will not do a divorce unless the couple (or at least one member) resides in the state and has for at least a year, leaving those couples high and dry.

The “religion card” idea is still untested, so far as I know.

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