Gay Marriage Ruling

There has been a gay marriage ruling in Mass.:

Massachusetts’s highest court ruled today that same-sex couples who live in other states cannot get married in Massachusetts unless gay marriage is legal in their home states.

In an opinion written by Justice Francis X. Spina, the court upheld a 1913 statute that says that no out-of-state resident can get married in Massachusetts if the marriage would be void in the person’s home state, unless the person intends to live in Massachusetts. Five justices concurred, at least in part, with Justice Spina’s opinion; one justice dissented.

“The laws of this commonwealth have not endowed nonresidents with an unfettered right to marry,” Justice Spina wrote for the majority. “To the contrary, the rights of nonresidents to marry in Massachusetts have been specifically restricted.”

He added, “I recognize that the brunt” of the law’s impact “has inevitably fallen disproportionately on nonresident same-sex couples rather than on nonresident opposite-sex couples” because no other state currently allows gay marriage.

I do not know about the legal reasoning in this ruling, but this seems reasonable to me.

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71 replies
  1. 1
    jg says:

    Doesn’t this contradict ‘full faith and credit’ or something like that?

  2. 2

    BWAAAHAHAHAHA!!!!!!!

    The 1913 statute would have been put in place to prevent mixed race couples from coming to Mass. to get married.

    They’re using a Segregation era law to prevent this!

    But this clearly shows the soft bigotry which is behind this gay marriage thing.

  3. 3
    jg says:

    Until the segregation law is removed don’t they have to use it? Can they ignore it? Is it bigotry or are their hands tied on this issue?

  4. 4
    Mr Furious says:

    I think the 1913 law they are citing was to prevent interracial marriage. That’s one to really hang your hat on, Righties. Nice job.

  5. 5
    Steve says:

    This is more evidence that the hysteria behind “we need a federal amendment!!!” is nothing but hype and fearmongering. States get to set their own rules for marriage, period.

    “Full faith and credit” is the constitutional clause that says you have to honor other state’s laws. There has always been an exception, though, for laws that offend your state’s “public policy.” For example, if California decides you can marry your sister, no other state has to recognize that as a valid marriage if they don’t want to. By the same token, although U.S. states recognize foreign marriages (I was married overseas myself), just because Saudi Arabia lets you have eight wives doesn’t mean that will be a legal marriage here, obviously.

    There is a “right to travel” under the federal constitution that basically says, you can’t discriminate against people from out of state. This was recently applied in a Supreme Court case that said, if you don’t allow people to mail-order wine from out of state, you can’t allow them to order it from in-state sources, because that’s like protectionism in favor of your own state. I’m not 100% sure how this applies here, but I think it’s ok to “discriminate” against other states when all you’re doing is helping the other state enforce its laws.

    In other words, it’s ok to say “you wouldn’t be allowed to do this in your home state, so we’re not going to let you come here and do it either.” That’s basically what this decision says.

  6. 6
    Steve says:

    And even if Mass changed their law and let out-of-state couples travel there and get married, by the way, that still wouldn’t be a valid marriage back in their home state. It would only be valid in Massachusetts.

  7. 7
    jg says:

    Thanks Steve.

  8. 8
    Jack Roy says:

    There’s no full faith and credit issue here. That clause entitles laws duly enacted by one state to be acknowledged by other states. But Massachusetts has enacted its own law restricting which marriages it will recognize; there’s no refusal by other states to honor those that Massachusetts recognizes.

    The reasoning looks pretty solid to me (not having seen the opinion). Marriage is in some ways unique, but it’s also in many ways like other legal relationships. If Massachusetts had a statute forbidding, say, contracts to be made with an out-of-state minor if those contracts would be void under that minor’s home-state law, even though it permitted domestic minors to contract, I would expect the court to honor that legislative intent. I’m actually kind of surprised that the one judge dissented. But again I haven’t read the case yet.

  9. 9
    Mr Furious says:

    In a separate ruling, Justice Francis X. Spina upheld that you cannot own an alligator as a pet, and one-armed piano players must perform for free, and cattle cannot be driven down the streets of Boston.

  10. 10
    jg says:

    Do they have to follow ther 1913 ruling in this matter? As long as its on the books they can’t overlook it or not apply it right?

  11. 11
    Steve says:

    Do they have to follow ther 1913 ruling in this matter? As long as its on the books they can’t overlook it or not apply it right?

    Well, that’s what this ruling was about, basically. The plaintiffs said “you should invalidate that 1913 law, declare it unconstitutional under the Massachusetts Constitution, because it discriminates against our right to have a same-sex marriage.” The court didn’t buy it, meaning that ship has now sailed, and the law stands unless the legislature decides to change it.

  12. 12
    Llelldorin says:

    This is unfortunate, but not really unexpected. We’ll have to win this in one of the two slow ways, then:

    (1) Slowly, slowly fight this out state by state until we win, or

    (2) Make the more liberal states so much more pleasant to live in than the conservative ones that the population tips our way through migration. (This has been the traditional solution, after all!)

    As jg said above, it’s up to the Mass. legislature to remove that law, if they want to. We’ve had enough legal Calvinball over the last few years (particularly from the Bush administration); I’d rather we all stuck to the rules as written for now.

  13. 13
    Navy nanny says:

    I think this is a perfectly reasonable law.

  14. 14
    Paddy O'Shea says:

    Ahhh, those GOP wedge issues. Gay marriage, immigration, flag burning, “Democrats Hate Jesus.” Honest Abe’s coffin must be a box of spinning bones.

    Looks like Karl “Honky Fear” Rove has stolen a page from the 1968 George Wallace playbook on this immigration issue that is sweeping the nation. Could 2006 be the first election year in a few decades where racial politics will be a real factor.

    Meanwhile, President Napsalot is taking a major approval slide over at Rasmussen. Maybe the country has finally had its fill of hate politics?

    3/27 45% approve – 55% disapprove
    3/30 40% approve – 59% disapprove

    The 59% disapproval number is the highest ever for His Ineptitude in this poll.

    http://www.rasmussenreports.co.....proval.htm

  15. 15
    fwiffo says:

    It seems to me that this ruling is mostly moot.

    It’s my understanding that prohibition of gay marriage in Mass. was overturned because it ran afoul of non-descrimination protections in the state constitution. Obviously, those protections would only apply to people living in Massachusetts, not Alabama or whereever. That makes the 1913 law technically applicable and valid (unless it were deemed unconstitutional for some other reason, which it hasn’t.)

    Now, the law could be repealed by an act of the state legislature or a ballot initiative (which seems possible or even probable in Massachusets), which would let those out of state couples get married. It wouldn’t matter though, since their marraige wouldn’t be recognized in their home state. Mitt Romney’s reasoning is completely bogus here for that reason. Even if the court had ruled the other way, Massachusets marriage law wouldn’t be imposed on any other state.

    It is conceivable that some other state laws might be such that they would not allows gay to marry in their state, but somehow they would recognize a gay marriage that occured elsewhere. In fact, the court ruled that a lower court should reconsider if that was the case for a few of the couples in the case (from New York and Rhode Island).

  16. 16
    Otto Man says:

    The legal reasoning is sound, I think, but relying on a law meant to cut down on interracial marriages certainly doesn’t present the “defenders of marriage” in a good light. Which is fine by me.

  17. 17
    Pb says:

    Massachusetts’s highest court ruled today that same-sex couples who live in other states cannot get married in Massachusetts unless gay marriage is legal in their home states.

    If we’re going to have some sort of a ‘home state standard’, then I’m ok with it, just as long as other states allow gay Massachusetts residents to marry in their state.

  18. 18
    LITBMueller says:

    “Full faith and credit” is the constitutional clause that says you have to honor other state’s laws. There has always been an exception, though, for laws that offend your state’s “public policy.” For example, if California decides you can marry your sister, no other state has to recognize that as a valid marriage if they don’t want to. By the same token, although U.S. states recognize foreign marriages (I was married overseas myself), just because Saudi Arabia lets you have eight wives doesn’t mean that will be a legal marriage here, obviously.

    That is a good point, Steve, but that is not what is under consideration in this case. Instead of a ruling that says “Just because State X says it is legal to do Y, Massacheussets does not recognize Y as legal in Mass.,” this ruling says “While doing Y is legal in Mass., if you are from State X, where doing Y is not legal, you cannot do Y (even though it is legal in Mass.)”

    That ruling is VERY different. It, in effect, declares that Mass.’s laws do not apply equally to people within its borders.

    Here is a better analogy: “If you are from State X, where the drinking age is 21, you cannot drink in Mass. if you are under 21, even though the legal drinking age in Mass. is 18.” Sorry! That cannot be done!

    This is not a full faith & credit issue. It is an EQUAL PROTECTION CLAUSE issue.

  19. 19
    Steve says:

    The legal reasoning is sound, I think, but relying on a law meant to cut down on interracial marriages certainly doesn’t present the “defenders of marriage” in a good light. Which is fine by me.

    Well, let’s be fair. This was a lawsuit by gay-marriage supporters against the state, claiming the 1913 law should be invalidated so they can marry. The state, as states do, defended the constitutionality of the law on its books.

    This wasn’t a case brought by gay marriage opponents seeking to enforce a racist law, or anything like that. The fact that the law was apparently passed for racist reasons in 1913 may say something about how things were in 1913, but I wouldn’t really say gay marriage opponents are “relying” on that law today. It just happens to be there.

  20. 20
    Steve says:

    Here is a better analogy: “If you are from State X, where the drinking age is 21, you cannot drink in Mass. if you are under 21, even though the legal drinking age in Mass. is 18.” Sorry! That cannot be done!

    Seriously? Can you cite me a case for that proposition?

  21. 21
    Pixie says:

    Seems fair, that way, if abortion is legal in my home state, I can still go to South Dakota and have one. I like this way of thinking!

  22. 22

    Well, let’s be fair. This was a lawsuit by gay-marriage supporters against the state, claiming the 1913 law should be invalidated so they can marry. The state, as states do, defended the constitutionality of the law on its books.

    Aww, shucks. I wanted to laugh at the bigots.

  23. 23

    Well, let’s be fair. This was a lawsuit by gay-marriage supporters against the state, claiming the 1913 law should be invalidated so they can marry. The state, as states do, defended the constitutionality of the law on its books.

    Other way. You can leave South Dakota to get an abortion in some other state where it is legal.

    Although, there was a case recently about a 20 year old guy marrying a 14 year old girl he knocked up. I think they were in Nebraska. But they couldn’t get married in Nebraska because she wasn’t old enough.

    However in Kansas they could get married as long as the parents consented, which they did. Even so the state was going after them.(because you know, it’s really the state’s business to overrule the parents)

    I don’t recall the outcome of that one.

  24. 24
    Par R says:

    Andrew Sullivan’s head just blew up.

  25. 25
    zzyzx says:

    This wasn’t a case brought by gay marriage opponents seeking to enforce a racist law, or anything like that. The fact that the law was apparently passed for racist reasons in 1913 may say something about how things were in 1913, but I wouldn’t really say gay marriage opponents are “relying” on that law today. It just happens to be there.

    Actually, the reason why there was a lawsuit was Romney’s work in promoting the use of that law. So yes, they were counting on it to some degree.

  26. 26
    LITBMueller says:

    Maybe you are misunderstanding me, Steve, because I can’t disprove a negative. Put it this way: if Mass.’s drinking age was still 18, it would be impossible for Mass. to say that it is illegal for those who come into Mass. from states where the drinking age is 21 to buy alcohol.

    Before Reagan signed the 21 Law, this was something that was happening – kids would drive from one state into the next to get drunk. States CANNOT discriminate against those within its jurisdiction based on their state of residence or the laws passed within – that is the essence of Equal Protection and Full Faith & Credit. It became necessary, therefore, for federal legislation to make the drinking age uniform.

    Why I think this is a better analogy: yours is focusing on “permissive” legislation within another state that Mass. might find objectionable. But, in this case, Mass. is the state with the permissive legislation, and it is attempting to discriminate based on a person’s state of residence and the laws that exist within.

  27. 27
    Steve says:

    The issue is whether a state may forbid conduct based solely upon the fact that it is illegal in the defendant’s home state.

    I guess I’m not as confident in the answer as I used to be, but I assume there’s a yes or no answer out there. I don’t see why this would be so unprovable – surely, at some point in history, a state has passed a law that said “you can’t come here to do X if X is illegal in your home state,” and either the federal courts struck down that law, or they didn’t.

    To be clearer:

    States CANNOT discriminate against those within its jurisdiction based on their state of residence…

    I am with you so far

    …or the laws passed within.

    That’s the part I’m not so sure about.

  28. 28
    Brian says:

    Imagine that, a state making laws as to what’s allowed within its border. Now, if only we can advance this novel way of thinking to the national level regarding our own borders.

  29. 29
    Pooh says:

    Steve has beat me to all the relevant legal points. That said, this seems a perfectly correct and logical ruling which will succeed in pissing everyone off.

  30. 30

    Anybody seen this?

    http://www.msnbc.msn.com/id/12078861/

    Bolten supposedly wants Snow gone at treasury, and replaced with someone who knows something about money… they’re talking CEOs of Goldman Sachs and such.

    Does this mean Bolten is going to go spend more time with his family? Or is Snow out? If Snow leaves, that’d be a big deal and would show a change of direction of the part of the Bushies. A good thing, IMHO.

    Better would be to bring back Rubin.

  31. 31
    D. Mason says:

    The Other Steve, I wouldn’t hold my breath for Bush to appoint someone who might disagree with his spending.

  32. 32
    Pb says:

    The Other Steve,

    Bolten supposedly wants Snow gone at treasury, and replaced with someone who knows something about money…

    That’s not really what I took from it:

    Joshua Bolten, the incoming White House chief of staff, wants Treasury Secretary John Snow replaced with someone who can present the administration’s message more forcefully

    It’s not really about knowledge per se, because they don’t actually want to change anything, they just want a more credible yes-man. Snow is an idiotic hack, and everyone knows it–they just want a more believable hack. If they wanted competence, then they should have listened to Paul O’Neill, but it’s no wonder that they didn’t–they’ve never wanted competence, just blind obedience.

    O’Neill, the former CEO of aluminum giant Alcoa, was fired in December 2002 over differences with the administration’s tax cuts.

    Suskind writes that O’Neill warned Vice President Dick Cheney of the consequences of a growing budget deficit, only to be told that Ronald Reagan’s two-term presidency showed “deficits don’t matter.”
    […]
    John Snow, who replaced O’Neill’s at the Treasury Department, said the administration believes cutting budget deficits — projected to hit $500 billion — is important, but the shortfalls are “understandable” given the impacts of recession and war.

    Ah yes, Mr. Snow, “the war”, which is generally not included when accounting for the deficit, as any competent person could tell you. And then there’s those tax cuts, which you forgot to mention. Hack.

  33. 33
    LITBMueller says:

    Steve, you might also want to consider the Privileges & Immunity Clause of the 14th Amendment. This page gives a good summary:

    The primary purpose of the clause is to prevent states from placing unreasonable burdens on non-residents “in their pursuit of common callings within the state.” The concern of the framers was that discrimination against non-residents by one state would lead to discrimination of the same sort by other states, to the detriment of the nation as a whole.

    Justice Bushrod Washington, sitting as a circuit judge in the case of Corfield v Coryell (1825), first considered the meaning of Article IV’s Privileges and Immunities Clause. Bushrod Washington concluded that the clause was meant to prevent discrimination concerning fundamental matters (such as the right to pursue an occupation in another state), but was not intended to prohibit distinctions between residents and non-residents in less fundamental matters such as opportunities for recreation. To a large extent, Washington’s approach has been followed ever since.

    Baldwin v Montana Fish & Game Comm’n (1978) considered Montana’s great difference in fees charged Montana hunters and out-of-state hunters. The Court upheld the differential fees, finding recreational hunting not to be the sort fundamental activity within the conern of the Privileges and Immunities Clause.

    In our two other cases, however, the Court found state attempts to restrict occupational opportunities within the state for non-residents to violate the clause. In Hicklin v Orbeck (1978), the Court struck down the “Alaska Hire Law,” which gave Alaska residents a preference for jobs in the state’s oil industry. And in Supreme Court of New Hampshire v Piper (1985), the Court voided a New Hampshire rule that limited admission to the state bar to New Hampshire residents. In both cases, the Court found that the states had failed to meet the high burden of justification for a law discriminating against non-residents with respect to a fundamental right. Discriminatory laws of this sort, the Court said, would only be upheld when the non-residents are “a peculiar source” of the “evil” the state is attempting to regulate and when the discrimatory law is the best way to get at the problem.

  34. 34
    Steve says:

    I really don’t see anything in there that helps answer the question.

  35. 35
    p.lukasiak says:

    Bolten supposedly wants Snow gone at treasury, and replaced with someone who knows something about money…

    wow, this points to an indictment for Andy Card in the near future.

    Card supposedly wanted the Treasury job, but Bush didn’t want to get rid of Snow. Now, the White House is signalling that Snow has to go, right after Card leaves…..but Card isn’t mentioned as a replacement?

  36. 36
    Paddy O'Shea says:

    Steve: It’s all window dressing. This is a GOP wedge political issue, and really not much different than any of the other minority bashing efforts put out by Rove et al.

    All the long-winded Constitutional ruminations you read here are besides the point. The GOP has become the party of intolerance, plain and simple.

  37. 37
    Pooh says:

    p.luk, I think you’re grasping at straws there. I wouldn’t be surprised by charges, but I’m not expecting them either. (I don’t remember them giving Claude Allen the full send-off the way they did for Card, also).

  38. 38
    Steve says:

    The more I think about it, LITBMueller, the more your argument seems to make no sense. Can’t a state, if it feels like it, have an absolute residency requirement for marriage, meaning no one can get married unless they live there?

    I don’t think the constitution forces states to marry nonresidents if they don’t feel like it, any more than they have to pay welfare benefits to nonresidents if they don’t feel like it.

    So if they don’t have to let nonresidents get married at all, it stands to reason they can say “we’ll let nonresidents get married, but only if it’s legal in their home state.” I don’t see the constitutional problem there.

  39. 39
    Pooh says:

    I don’t think the constitution forces states to marry nonresidents if they don’t feel like it, any more than they have to pay welfare benefits to nonresidents if they don’t feel like it.

    Further, I don’t think the Mass. state Constitution trumps another state constitution.

  40. 40
    Edmund Dantes says:

    The truly interesting ruling will be when a gay Massachusetts couple that was married legally according to the rules of MA is forced to move to some other state due to work, family, etc reasons. Something happens where there is some need to exercise their rights as a married couple (filing taxes, visiting loved one in hospital, end of life decision, etc). This will be the real interesting Full Faith and Credit clause case.

  41. 41

    Let’s say you’re in New Jersey and you decide to get married in Massachusetts, you know, a GAY marriage. You and your betrothed move to Mass. You stay there a certain legal period, get married. You stay a little while longer. Then you move back to New Jersey.

    Does New Jersey have to recognize the Massachusetts marriage?

    And is there any movement to throw out the 1913 law?

    By the way, I’ve missed it. Anyone have news about the collapse of Massachusetts due to its acceptance of gay marriage? Was the Red Sox winning the World Series awhile back some kind of sign?

  42. 42
    demimondian says:

    There’s no question that a state could have an absolute residence requirement for couples to marry. The question before the court was whether a state could have a residence requirement for same-sex couples, but not for opposite-sec couples. The equal rights question is not whether Las Vegas wedding chapels can be banned, but whether they can only be available to whi…err, I mean straight couples.

  43. 43
    demimondian says:

    Was the Red Sox winning the World Series awhile back some kind of sign?

    Back when I lived there, I was told that the Red Sox winning the World Series would be a sign of the end times (something about “a cold day in Hell”, if I remember correctly). So there may be truly universal consequences to the Blue State apostacy.

  44. 44
    Steve says:

    Other states do not have to recognize gay marriages from Massachusetts. Period. For a court to rule otherwise, they would not only have to throw out the Defense of Marriage Act, but about 100 years of jurisprudence regarding the public policy exception to the Full Faith and Credit Clause.

  45. 45
    Kirk Spencer says:

    Funny how marriage is different. See, if two people want to create a corporation or other business relationshiop under the laws of a different state that state can’t refuse them. (Steve, that’s the gist of LITBMueller’s point). Even if that particular type of incorporation – say, a ‘secret partner’ limited liability corporation – was disallowed by the home state of either or both of the people involved.

    The whole miscegenation law history is almost too tangled to use it as a basis here, unfortunately. Not least because the SCOTUS decision that broke its back (Loving v Virginia) was about a couple that went to a place (DC) that ALLOWED the out-of-state marriage, but was arrested upon return to their home state of Virginia.

  46. 46
    Steve says:

    The reason you can’t require residency to establish a corporation, I think, is that the Commerce Clause prohibits a state from discriminating against interstate commerce. When you’re dealing with a non-commercial setting, that concept doesn’t apply.

    It’s true that marriage is special, though. Marriage, divorce, and real estate are probably THE quintessential state law topics. In fact, that’s sort of why we have Kelo.

  47. 47
    LITBMueller says:

    FindLaw takes up the P&I Clause argument here:

    Third, and most importantly, plaintiffs claim that the evasion law violates the Privileges & Immunities clause of Article IV of the U.S. Constitution. That clause states that the citizens of each state shall be guaranteed the privileges and immunities of every state.

    For their claim to succeed, the SJC must hold that the law denies non-residents a right that is fundamental, and that the denial cannot be validly justified by the state. In an earlier SJC holding, for instance, the SJC held that the right to pursue one’s livelihood is fundamental, and that the state could not justify denying Massachusetts bar admission to non-residents.

    Which side will prevail on this claim? On one hand, Goodridge is written in such broad and unrelenting terms that it is hard to imagine the same court would uphold the marriage evasion law — given its origin, motivation, and current implications.

    On the other hand, the SJC may hold that the right to marry is not truly fundamental – as understood in Privileges & Immunities cases, but only important enough that it cannot selectively be withheld from some groups, but made available to others. (If so, a sad irony would result: The right to practice law would be fundamental, but the right to marry would not. It would be a result only a lawyer could love!)

    Alternatively, the SJC may hold that while it is irrational to discriminate on the basis of sexual orientation, it is rational to discriminate on the basis of residency. Thus, it may permit Massachusetts to apply its marriage evasion law, as long as it does so consistently.

    Regardless of how the SJC proceeds – but especially if it upholds the validity of the marriage evasion law — the Massachusetts legislature should repeal its marriage evasion law. The National Conference of Commissioners on Uniform State Laws was wise to get rid of this rule in 1943. Now, over sixty years later, it’s time for Massachusetts to do the same. For marriage to be meaningful, it must be portable.

    First, if marriages are not portable, unfairness as between the parties to the marriage will doubtless result. Marriages that do not survive state lines are vulnerable to either party’s desire for a free way out. No state has an interest in permitting one spouse to abandon the other (and any children of the relationship) hassle-free.

    And, yet, that is exactly what restrictive rules of marriage recognition make possible. A same-sex spouse from Massachusetts need only move to any one of the forty states whose laws expressly prohibit same-sex marriages, in order to be relatively confident that the union will not be recognized and that the obligations created by marriage cannot be enforced.

    Second, if marriages are not portable, both parties may suffer unfairly: If they cross state lines, they lose the benefits and protections that their marital status had provided.

    Are there any downsides to repealing the marriage evasion act? Not really.

    For one thing, Massachusetts need not worry that it will be dictating marriage policy for the whole country. Even if Massachusetts repeals its marriage evasion act, other states will still be able to each decide whether or not to recognize Massachusetts marriages.

    In talking about the Defense of Marriage Act (DOMA) in 1996, members of Congress suggested – to the contrary — that the U.S. Constitution’s Full Faith and Credit Clause requires the states to recognizes marriages from another state.

    But no Supreme Court case has ever so held. And the law of the states on marriage recognition issues comes from common law principles of comity – that is, the idea that states should respect each others’ law – and not the Full Faith and Credit Clause.

  48. 48
    jg says:

    Before Reagan signed the 21 Law, this was something that was happening – kids would drive from one state into the next to get drunk. States CANNOT discriminate against those within its jurisdiction based on their state of residence or the laws passed within – that is the essence of Equal Protection and Full Faith & Credit. It became necessary, therefore, for federal legislation to make the drinking age uniform.

    Now that’s funny. Reagan signed a law that made a ‘states rights’ issue a federal issue? Is there even one conservative in the republican party?

    I don’t think the drinking in another state analogy works. State X isn’t infringing on state Y’s laws against drinking just because people come to state X to drink. People are just getting around the law. We’re free to do that. They still can’t drink in state Y. Marriage is different because they want to go back to state Y and have the state recognize the marriage. Sounds like Mass is saying the fact they allow the marriage doesn’t force any other state to recognize it.

  49. 49

    I remember driving from New Jersey (where it was 21 to drink) into New York (where it was 18) back in high school. We’d buy our Annie Green Springs and Pabst Blue Ribbon and Canadian Club and then head back to a safe house to sit around and liquor up. Cops used to wait for cars to come back from Staten Island or Manhattan, where we used to go, but there were just too much traffic to stop everyone. We’d get the straightest, geekiest guy to do the driving.

  50. 50
    Kirk Spencer says:

    For what it’s worth, I think we’ll see a couple of cases go to the SCOTUS over the Mass law, but it’s not going to be this one. I don’t know the specific – don’t even think it’s happened yet – but I can give you the gist of the details of the two – it’ll be one or the other if not both.

    A) Two Mass residents, married, on vacation in another state. Say for example, skiing in Utah. Partner A suffers a major accident and goes to the hospital. Partner B attempts do do the spousal requirements – signing for forms, visiting, all of that sort of thing – but is refused. There are a number of minor variations and complications but that’s the core.

    B) Two Mass residents get married. They own property in states other than Mass. Some time later one dies without a will. The blood family challenges the probate of the property outside Mass. There are touches that can make this nastier, not least the possibility of the couple moving to another state because that’s what the employer of one required to continue employment.

    I think the current decision is going to hold. It’s the two cases I mentioned above that’ll make the stink and bring things to the crux. IMO, of course.

  51. 51
    Jim Allen says:

    Sounds like Mass is saying the fact they allow the marriage doesn’t force any other state to recognize it.

    I see your point — up to a point. In this case, it’s not that Massachusetts is trying to force another state to accept the marriage. Indeed, Massachusetts could allow the marriage and say “as far aw we’re concerned, you’re married, but when you get back home you’re on your own”. Instead, this law is saying, “since you can’t get married at home you can’t get married here, either”. In other words, the Mass. law is allowing another state’s laws to trump those of Massachusetts.

  52. 52
    LITBMueller says:

    Can’t a state, if it feels like it, have an absolute residency requirement for marriage, meaning no one can get married unless they live there?

    Short answer: NO
    Long answer: SCOTUS has held that states can reasonably regulate marriage by prescribing who can marry and the manner in which marriage can be dissolved. But, the Court has also recognized that marriage is a fundamental right and that there is a right to marry (see the Loving case, which struck down VA’s miscegenation statute). This right cannot be casually denied and states are proscribed from absolutely prohibiting marriage for no valid reason.

    An absolute residency requirement would also implicate the right to interstate travel, which is also a fundamental right. It would also implicate the P&I clause and perhaps a due process violation, too, as it would be considered discrimination by one state against all other state residents.

    That is why the most you will ever see are short, reasonable, waiting periods of several days.

  53. 53
    Jack Roy says:

    Steve, I don’t know if this has been answered before, but the online wine sales case was decided under the negative Commerce Clause, which carries a presumption of neutrality where Congress hasn’t authorized the states to practice self-protection.

  54. 54
    Steve says:

    I think the reason why you never see an absolute residency requirement is because states like tourism. But I have never seen a case that says a state can’t declare “we will only marry people who live here.”

    I’m not talking about a law that says “you must live here for 1 year before you can get married,” or anything like that. I’m just talking about a law that says “you have to live here to get married here,” period. Show me a case that says that’s unconstitutional.

  55. 55
    Dave Ruddell says:

    States CANNOT discriminate against those within its jurisdiction based on their state of residence…

    So how is it that state universities charge different tuition for in-state and out-of-state students? I’m not trying to be a smart-ass here; this would seem to me to be a discriminatory practice, although if I’m missing something simple, please tell me.

  56. 56
    jg says:

    I see your point—up to a point. In this case, it’s not that Massachusetts is trying to force another state to accept the marriage.

    I didn’t mean that at all.

    Instead, this law is saying, “since you can’t get married at home you can’t get married here, either”. In other words, the Mass. law is allowing another state’s laws to trump those of Massachusetts.

    I don’t think Mass is allowing another state to trump them. They are deciding not to let non-residents use Mass laws against the non-residents home state. They’re saying since you can’t get married in your home state we aren’t going to let you marry here because when you go home you won’t be legally married anyway so what’s the point. They don’t want to become party to your court case against your home state. Which is the only real result of your going to Mass to get married. You aren’t married because you don’t live in Mass, where you live doesn’t recognize your marriage. All you’ve done is create a foundation for your argument with your own state.

  57. 57
    scs says:

    Okay, on a related topic to this. I was thinking that for people who are against gay marriage, a defense for it could be, what do they do about the many cross-gendered people who are born every year, who are neither a man or a woman? I read somewhere that 2% of people are born this way, which means millions of people all over the country, although I would guess the physical effects are more noticeable in some than other. Are these cross-gendered people allowed to marry and which sex are they allowed to marry? If we already allow cross-gendered people to marry people who are not really the opposite sex, then how can we not allow gay marriage. And what about people who’ve had sex changes? It get’s so complicated.

  58. 58
    Pooh says:

    It get’s so complicated.

    Lie down, dear, it will all pass.

  59. 59
    LITBMueller says:

    Dave, there was a case that directly applies to that. I wish I could remember its name, but, if I remember right, that sort of situation is regarded as providing a benefit to state residents and, therefore, not discriminatory. In addition, the state has a rational basis for such a difference in tuitions – state residents pay taxes which go towards operating the schools, etc.

    The legal analysis of equal protection, full faith & credit, etc., cases are all tortured and complicated, with different bases of analyses depending on the type of discrimination. Too complicated to go into here!! :)

    I’m just talking about a law that says “you have to live here to get married here,” period. Show me a case that says that’s unconstitutional.

    Steve, I looked. Honest. I couldn’t find one. Probably because no state has ever attempted to pass a law like that.

  60. 60
    don surber says:

    Let the gays marry already. God made Adam and Steve. Sheesh, this is just like DOMA (signed into law by that great expert on marriage, Bill Clinton) and the civil unions dodge (created by Gov. Howard Dean)

  61. 61
    Otto Man says:

    Let the gays marry already. God made Adam and Steve. Sheesh, this is just like DOMA (signed into law by that great expert on marriage, Bill Clinton) and the civil unions dodge (created by Gov. Howard Dean)

    This doesn’t happen often, so let me say it now: I agree with Don Surber.

    Clinton signing DOMA was about as big a joke as Bob Barr sponsoring it (three marriages) or Gingrich ushering it through the House (two divorces at the time, including a first wife served with papers while in the hospital recovering from a masectomy).

    If these are the people defending marriage, we married folks need better representation.

  62. 62
    Paddy O'Shea says:

    I have often felt that it really is in the interests of all to end the discriminatory practice of not allowing gays to marry. After all, why should heterosexuals be the only ones to suffer from this barbaric institution?

  63. 63
    ppGaz says:

    Don, it’s “teh gays”, but aside from that minor typo on your part, kudos, and I agree with you.

    That’s twice in about a week.

    Must. Stop. Agreeing. With. Don.

  64. 64
    don surber says:

    ppGaz

    There is a support group: Surbers Anonymous

  65. 65
    ppGaz says:

    There is a support group: Surbers Anonymous

    “My name is ppG, and I agree with Don Surber.”

    I don’t know if I have the guts to do that. I’m gonna need somebody to go with me and sponsor me.

  66. 66
    Jim Allen says:

    They don’t want to become party to your court case against your home state.

    jg, I think you hit the key point there, and that makes the decision (and the law) make a bit more “sense” (although I still don’t like having a law codifying discrimination on the books like that, particularly given why (historically) the law was passed).

  67. 67
    ppGaz says:

    Lie down, dear, it will all pass.

    She has a kidney stone?

  68. 68
    Krista says:

    She has a kidney stone?

    /wince

  69. 69
    Jack Roy says:

    Dave, Mueller, the only case I’m aware of is Martinez v. Bynum. But I believe that as a general matter states are considered market actors when they provide subsidies to their residents, and there’s an exception in the doctrine for states acting as market actors. Which makes sense; you wouldn’t want the federal courts having to hear every challenge resulting from an out-of-state firm that disputed an awarded contract to an in-state firm when the state entered into contracts.

  70. 70
    pennywit says:

    Seems pretty sound to me; as I understand marriage law in general, most states take a dim view of people who come to a state to take advantage of marriage laws, then head back to the other sate w/o intending to reside in the state where the marriage is concluded.

    Vegas excepted.

    –|PW|–

  71. 71
    Jim Allen says:

    Seems pretty sound to me; as I understand marriage law in general, most states take a dim view of people who come to a state to take advantage of marriage laws, then head back to the other sate w/o intending to reside in the state where the marriage is concluded.

    Vegas excepted.

    This is a big problem? Can you give me any examples of disadvantages to Massachusetts if a gay couple comes to Boston, get married, has a nice reception at the Four Seasons, and moves back to Connecticut? Why the hell should Massachusetts care?

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