No gay marriage for outsiders

No gay marriage for outsiders

It was a surprising defeat for the pro-gay marriage crowd. The Mass. Supreme Judicial Court ruled today that non-Massachusetts residents from states that prohibit gay marriage cannot marry here. This is based on a 1913 law that forbids nonresidents from marrying when their marriage would not recognized in their home state. It was passed during the days when interracial marriage was a big deal and it remains on the books ... for now. We’ll see how quickly the liberal political machine gets into motion to repeal it.

Of course, not all states have laws explicitly forbidding gay marriage and in fact there are lawsuits in some states, like New York, claiming a constitutional right to marry someone of the same sex. It will be interesting to see how this affects drives to put bans into effect in other states, that is if it will increase the sense of urgency.

Typically, the pro-gay arguments are based on emotion and feelings and not on the law or logic:

“I find it to be a very illogical statement,” Pearsall said. “It seems to me that it’s a statement that’s not really based around any sense of humanity, but really on a sense of politics, which is really not a fair way to treat people. It’s a hurtful thing. I’m disappointed.”

The law is the law. If you don’t like it, then get a majority of voters or representatives to support a repeal. Asking an unelected panel of judges to change the law so it’s no longer “hurtful” is not what a democratic republic is about.

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  • No, the natural law is not something you can put up for a vote, which is why the Church will never recognize it. But the price of living in a democracy is sometimes the majority decide to do things that are wrong. What can you do but work to convince them of the better way.

    Either way, having it imposed from above by judges is wrong at all levels.

  • Geez, I don’t think the gay marriage lobby is coming here to get ideas. They know what they have to do and we know what we have to do.

    After all, isn’t that the point of the constitutional amendment petition? To get the right to vote on the matter? If we think there’s enough people to vote in favor of the amendment, then there’s enough to keep this law. If not on the first count, then the second count is moot.

  • Three points: the SJC’s decision was even more fractured than its original ruling on gay marriage, with four opinions—none of which I’ve read—defining the position of the majority. The good news here is, it would seem to me, that more members of our state’s highest bench are seeking to respond to the views of a very divided public and, thus, foster more searching debate on this controversial question.  This can only be helpful in a pluralistic, democratic society, where the resolution of such deeply divise issues must depend on the development of intelligent consensus—if the rule of law is to continue to prevail.

    Second, the SJC’s decision has to be seen, I think, as an act of judicial modesty, taken both in response to the uproar created by the gay marriage case but also in respect to the principle of federalism.  For whatever reasons and, I suspect, the motives were mixed, the Massachusetts justices recognized that they should not put the Bay State in the position of attempting to dictate the behaviors of other under their state constitutions and government officials, elected or appointed.

    Third, that said, the 1913 in question has to be acknowledged, a century later, as one of the most craven capitulations to racism ever to stain the escutcheon of the Bay State.  It would be far nobler and, in the long run, I think far more effective for those who oppose gay marriage to eschew resort to this statute, as the merely stop-gap defense that it can offer, than to take the underlying issue of gay marriage directly to the people. Proclaim gay marriage an abomindation, denounce its supporters for defying thousands of years of human history,  holy writ, and natural law, rely on the tradition of federalism that over two centuries has allowed states to make mistakes—including slavery and segregation—that the body politic of the Union would eventually come to renounce—but don’t, in the pursuit of a fleeting advantage in court—allow yourself to cede all claim to the moral high ground by embracing a disreputable law when you don’t have to.

  • By the way, the law is the law.  What is the law that permits same sex marriage right now?  The answer none.  The SJC interpreted the marriage statute to NOT PERMIT same sex marriage.  The SJC declared the marriage statute “unconstitutional” BUT they did not strike that law.  The SJC changed the common law meaning of the term marriage but that term exists in the statute and the Constitution and therefore the SJC’s declaration of a new meaning did not and could not change the statute nor the words of the Constitution.  The SJC acknowledged that they could not legislate in the Goodridge case and therefore gave the legislature 180 days to act.  The legislature neither repealed the “unconstitutional” marriage law nor changed the law by way of a change to the statute nor by allowing the Constitutional Amendment to go through in 2005. Therefore the “law” the marriage statute that forbids same-sex marriage, continues to forbid it.  The only reason why same-sex marriage licenses are being handed out is because Mitt Romney ordered them to be without authority under any statute. 

    This new case is quite careful in its wording.  It states (clearly in my opinion acknowledging the illegality that is currently going on right now in Massachusetts against the will of the people, and as a result off their acquiescence) that:  “Beginning on May 17, 2004, the date this court’s decision in Goodridge v. Department of Pub. Health, supra, became effective, municipal clerks in several cities and towns began to receive notices of intention of marriage from nonresident same-sex couples.”  It does not state that same-sex marriage became legal on May 17, 2004 because it did not.  The Governor, town clerks are violating current Massachusetts law.

  • I suppose you think my writing is full of hatred. I understand since your mindset sees anything short of full celebration of what you assert as hatred. Thus when one believes that a homosexual lifestyle is immoral, people like you call that homophobia, or fear of homosexuals. It’s not fear.

    I have written nothing of hatred here. But you will,  of course, return reasoned discourse with more attacks and anger.

  • As to “other States,” the ruling is irrelevant.  When/if Mass., (or some other deranged State) ‘legalizes’ the fiction of same-sex marriage, the “full faith and credit” clause of the US Constitution will make it national.

  • Carpundit, I’m not gay, but some members of my family and other dear friends are, and, since it has become legal for them to marry in Massachusetts, I have proudly been witness at their weddings. Nonetheless, I must take issue with your allegations of hatred directed at Dom and others on this blog because they oppose Goodridge and object to homosexuality as contrary to the principles of their faith.  Goodridge may have been rightly or wrongly decided, but it was decided by the slimmest of margins, reflecting the depth of division in our society on a most important and controversial question.  It is both specious in the extreme and harmful to the public discourse to allege that opposition to gay marriage is a priori an expression of hatred of gays or even homophobia.  More importantly, such allegations, even if they were well founded, do nothing to persuade those against whom they are lodged but simply serve to offend and further alienate their targets.

    Good and serious people, including three of the seven justices of the SJC in Goodridge, have ample cause to oppose gay marriage.  Attempting to trivialize or demonize this cause won’t change anyone’s mind.  Nor should it.  There’s too much at stake

  • Tony,

    Thank you. I always appreciate your thoughtful comments. It is a rare and wonderful thing to find people in the media who are as fair and open-minded as you are. Even when we disagree, your comments are always thoughtful and interesting to read. Keep up the good work.

  • FYI, the town clerk training given May 2004 by Romney’s then-Chief Counsel confirms this:

    Slide 3: Legislature has not made changes to statutory laws to facilitate Goodridge
    Slide 4: The SJC did not change marriage statutes in c46 and 207
    Slide 6:  Clerks should implement the “new law” on May 17.

    What new law? There was none.

    A constitutional law blog sponsored by the Globe explained this before “marriages” began (Scroll 2/3 down: May 14 entry):

    The authority of town clerks to issue and file marriage licenses and of the Department of Health to create procedures relative to marriage flows directly from the Massachusetts statutes cited in Goodridge. Therefore, when the Court found that those statutes did not permit same- sex marriages, the Court effectively denied town clerks and Department of Health officials the ability to confer marriage upon same-sex unions until the legislature takes further action.

    “Principles of our democratic republic demand that law be created by duly elected representatives. Those in the executive branch or in subordinate agencies—for example, town clerks—are not permitted to create law on an ad hoc basis. When, as happened in Massachusetts, a state’s highest court allows time for a legislature to change current statutes, procrastination on the part of the legislature does not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed. State officials may not implement a legislative scheme that does not yet exist. Yet, if the train keeps moving, that is exactly what will happen in Massachusetts on May 17. Town clerks, magistrate judges, and the entire executive branch are all gearing up for same-sex marriage. If the people of Massachusetts value their democratic principles, they will consider again the significance of May 17. Aside from an entry of the Court’s judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more will result. There will be no provision for valid same-sex marriages.

    “Importantly, the Goodridge Court could have written its opinion so that legislative action was not a prerequisite for same-sex marriage. The Court could have construed Massachusetts law as currently written to provide for same-sex marriage. Alternatively, the Court could have created a form of common law marriage that included same-sex unions. Either would have had the immediate effect of creating same-same marriage in Massachusetts. For obvious reasons, however, the Court chose to do neither. Radical changes to law should involve, to the greatest degree possible, the cooperation of all of the co-equal branches. Without delving into the Court’s claim that the world’s oldest functioning constitution suddenly now requires same-sex marriage, it is to the Court’s credit that it crafted an opinion mandating legislative action prior to same-sex marriage arriving in Massachusetts.

    “It is unfortunate that Governor Romney and others are undermining the democratic process by refusing to recognize this. The result is that Massachusetts may shortly have hundreds or even thousands of “married” couples of dubious status. If, in due course, the rule of law is honored, these marriages will be invalid for lack of enabling legislation.

    There’s never been any enabling legislation.

  • If you read the new decision, Cote, Judge Ireland’s dissent confirms all of the legal discussion above.  He claims to believe that by changing the “common law” meaning of the term “marriage” the statute is changed.  Everyone else on the SJC disagrees with him.  That is probably because they all know that the common law is subordinate to statutory law which is subordinate to constitutional law.  Changing the common law does nothing to impact a statute.  Ireland is the only dissenter.  That means that the rest of the SJC are aware of this problem.