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Mass. Nups Door Not Slammed

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Couples from some states, New York included, might still qualify

The Massachusetts Supreme Judicial Court ruled on March 30 that the state’s marriage evasion statute adopted in 1913 is constitutional and bars the issuance of marriage licenses to same-sex couples from out of state if their home state’s laws forbid same-sex marriages.

However, three members of the seven member court found that a couple from a state that has not specifically barred same-sex marriages by constitutional amendment, statute, or “controlling appellate decision” may be entitled to marry in Massachusetts.

One court dissenter found the marriage evasion statute to be unconstitutional as applied to the issue of same-sex marriage.

The ultimate result, then, in the case of Sandra Cote-Whitacre & Others vs. Department of Public Health, is that a few of the same-sex couples who are plaintiffs in the case—specifically those from Rhode Island and New York—will be given the chance to persuade the Superior Court, a lower court, that their states would not prohibit same-sex marriages. The plaintiff couples from Connecticut, Maine, New Hampshire, and Vermont, where same-sex marriage is banned by statute, are dismissed from the case.

The same-sex couple plaintiffs are represented by Michele E. Granda and Gary D. Buseck of Gay and Lesbian Advocates and Defenders, New England’s LGBT public interest law firm, which won the historic marriage decision in 2003. Town clerks of various Massachusetts municipalities also joined the lawsuit contesting the state’s refusal to let them issue marriage licenses to same-sex couples, but the court questioned their standing as public officials to raise these constitutional issues against the state.

The 1913 statute, which was not being actively enforced at the time gay marriages began in Massachusetts, was drafted by the Commissioners on Uniform State Laws, who represented all the states to recommend legislation intended to produce uniformity in laws where it was deemed desirable. The most famous example of the laws created in this fashion is the Uniform Commercial Code, which establishes a standardized treatment of commercial law.

Early in the 20th century, many states prohibited interracial marriages, but others, including Massachusetts, allowed them and did not impose residency requirements for those who sought to marry. The Commissioners aimed to counter the phenomenon of marriage evasion, by which couples would travel to another state to get married and then return to their home state to live, considered undesirable because it undermined the ability of each state to decide who was entitled to be married within its borders. Massachusetts was one of only a handful of states that actually adopted the proposed uniform marriage evasion statute however, and its original purpose became obsolete in 1967 when the U.S. Supreme Court declared laws against interracial marriage unconstitutional.

The evasion statute appears in three sections of the Massachusetts General Laws. One section says: “No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.” A second says: “Before issuing a license to marry a person who resides and intends to continue to reside in another state, the officer having authority to issue the license shall satisfy himself, by requiring affidavits or otherwise, that such person is not prohibited from intermarrying by the laws of the jurisdiction where he or she resides.” And the third relevant section states that the other two “shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of those states which enact like legislation.”

Writing for himself and Justices Judith A. Cowin and Martha B. Sosman, Justice Francis X. Spina found that these provisions, read together, mean essentially that the only same-sex couples who reside outside of Massachusetts entitled to marry there are those who reside in states that affirmatively allow same-sex couples to marry. Since no other U.S. state currently does so, according to Spina gay residents of no other states may marry in Massachusetts.

In rejecting the constitutional challenge to the 1913 law, Spina asserted that under the 2003 Goodridge decision that allowed same-sex marriage in Massachusetts, marriage was not declared a fundamental right and sexual orientation discrimination was not found to be a “suspect” category that merited heightened court scrutiny. Consequently, the state needs to provide merely a “rational” basis—rather than a “compelling” case—in justifying the 1913 statute. Spina argued that the principles of “comity,” by which states decide whether to recognize marriages performed in other states, provide that rational justification. It is possible that this respect for the laws of other states would inspire reciprocal respect for same-sex marriages performed in Massachusetts.

Spina rejected the argument that the marriage evasion statute was being “selectively enforced” against same-sex couples and thus unconstitutional in its application. Local clerks have been instructed to review all possible impediments to marriages of out-of-state couples, including age and blood relationships. He conceded that as a practical matter the law might have a discriminatory effect, but argued that the drafters of the statute in 1913 obviously did not intend to discriminate against gay couples.

Chief Justice Margaret Marshall, the author of the Goodridge decision, writing for herself and Justice Robert Cordy, and only partially for Justice John M. Greaney, who also wrote a separate opinion, agreed with Spina and his colleagues that the law is constitutional, but disagreed on its interpretation. According to Marshall, same-sex marriages by non-residents are only barred if they come from a state in which the constitution forbids same-sex marriage, a statute provides that no such marriage will be recognized, or an appellate decision binding on the whole state so holds.

Marshall disagreed with Spina’s view that town clerks should withhold licenses from applicants residing in any state that does not allow same-sex marriage—i.e. every other state currently. Marshall and her colleagues pointed out that it was possible that a state that does not specifically authorize same-sex marriage might nonetheless refrain from considering a Massachusetts same-sex marriage by its residents to be void. Of course, any state that has adopted a specific law or constitutional amendments barring gay marriage would not qualify even under this more lenient interpretation.

Among the home states of the plaintiffs in the case, Marshall noted that two—New York and Rhode Island—might qualify for the exemption she contemplates and couples from those states should be given an opportunity to present evidence to a trial court. Marshall may have been thinking of an opinion issued in March 2004 by New York Attorney General Eliot Spitzer suggesting that, absent a strong public policy here against same-sex marriage, the courts would recognize an out-of-state same-sex marriage. She did not specifically mention that opinion, however.

Although several appellate courts have rejected same-sex marriage claims in New York, both before and after Spitzer’s opinion, there has been no ruling on the question by the Court of Appeals, our highest court, which has scheduled arguments for May 31 in appeals from recent adverse decisions by the 1st (Manhattan) and 3rd (Albany) Departments of the Appellate Division.

Justice Greaney, who also wrote separately, said that he had been persuaded by the arguments made in this case that the state government’s use of the statute to deny marriage licenses to out-of-state couples “is constitutionally impermissible. I see no compelling reason,” he wrote, “to treat couples who travel here wishing to marry less favorably than our own citizens.” However, he shared Marshall’s view that the public policy of the state in which non-residents come from should control who can marry in Massachusetts.

The only member of the court who found himself in total agreement with the plaintiffs was Justice Roderick L. Ireland, who dissented from the decision upholding the constitutionality of the 1913 statute. Since he believes that same-sex couples from out of state are entitled to marry in Massachusetts under Goodridge, his vote is counted together with those of Marshall, Cordy, and Greaney in constructing the majority that allow the New York and Rhode Island couples to continue their case.

Ireland’s long dissenting opinion challenged the notion that interstate comity required Massachusetts to reject marriage license applications from same-sex couples based on the public policy in their home states and argued that the enforcement of “a moribund statute, dormant for almost one hundred years, not only violates the ‘spirit’ of Goodridge… but also offends notions of equal protection. It is, at its core, fundamentally unfair.”

The plaintiffs could theoretically petition the United States Supreme Court to review the rejection of their constitutional challenge, which was partially predicated on federal constitutional principles, but the likelihood that a petition for review would be granted is slim.

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Updated 5:17 pm, July 20, 2018
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