MA high court bars same-sex marriage for non-residents . . .

[TaleWgnDg]

BREAKING NEWS ~ Massachusetts high court bars same-sex marriage for non-residents

Jeannie Shawl at 10:17 AM ET, Thursday, March 30, 2006

(JURIST NEWS) AP is reporting that the Supreme Judicial Court of Massachusetts (official website) ruled Thursday (March 30, 2006) that same-sex couples from outside of Massachusetts cannot marry in the state. Massachusetts became the first state to legalize same-sex marriage (JURIST news archive) with the state high court's 2003 decision in Goodridge v. Department of Public Health (text; JURIST report).

At issue in the current case (JURIST report) was whether a 1913 law (text), which prohibits out-of-state couples from marrying in Massachusetts if their home states do not recognize the union, comports with the Massachusetts constitution (text). Massachusetts Gov. Mitt Romney has used the law, which had otherwise been rarely invoked, to deny marriage licenses to same-sex couples from nearby states. AP has more.

10:44 AM ET - Read the court's decision (PDF text) in Cote-Whitacre v. Department of Public Health.

. . . more at . . . http://jurist.law.pitt.edu/paperchase/2006/03/breaking-news-massachusetts-high-court.php

(Massachusetts Supreme Judicial) Court: Gays Can't Come to Massachusetts to Marry

BOSTON - (AP) Same-sex couples from states where gay marriage is banned cannot legally marry in Massachusetts, the state's highest court ruled Thursday.

The Supreme Judicial Court, which three years ago made Massachusetts the first state to legalize gay marriage, upheld a 1913 state law that forbids nonresidents from marrying in Massachusetts if their marriage would not be recognized in their home state.

"The laws of this commonwealth have not endowed non-residents with an unfettered right to marry," the court wrote in its 38-page opinion. "Only non-resident couples who come to Massachusetts to marry and intend to reside in this commonwealth thereafter can be issued a marriage license without consideration of any impediments to marriage that existed in their former home states."

Eight gay couples from surrounding states had challenged the law in a case watched closely across the country.

In its ruling, the court sent the cases involving couples from Rhode Island and New York back to a lower court, saying it was unclear whether same-sex marriage is prohibited in those states.

Gov. Mitt Romney applauded the ruling.

. . . more at . . . http://yurl.com/hvtof

I've just received a copy of the case. The url that I have may not come up for others but here it is: http://weblinks.westlaw.com/find/default.wl?bQlocfnd=True&DB=MA%2DORSLIP&DOLOCATE=Locate&FindType=Y&LQuery=to%28allsct+allsctrs+allsctoj+allapp+allapprs%29&RS=ICLP2%2E0&SerialNum=2008788880&sp=MassOF%2D1001&ssl=n&strRecreate=no&sv=Split&VR=1%2E0
(its Westlaw . . . enough said)

[closeupready]

1. On what basis? Are out-of-state heterosexuals barred from

the same thing?

[eyesroll]

3. If their home state would bar their union, yes.

For instance -- if someone gets divorced in Wisconsin, there's a six-month waiting period before they can marry again. If they go to Massachusetts (which has a shorter waiting period), they still can't get married there, because their home state wouldn't recognize the new marriage.

[David__77]

11. But they are NOT enforcing that for opposite sex couples.

They're only enforcing it for same sex couples. That is a fact. If you're straight, you can get married, even if in your own state you could not.

[eyesroll]

15. OK, enforcement vs. what the law says is two different things, true.

(And I do think the law in this case and this enforcement of it is full of crap, anyway.)

[MissMillie]

30. That's my issue w/ this... enforcement.

The law should be enfoced equally, not just against same-sex couples.

[sui generis]

4. they're going to have to bar all couples now

thank you Mitt Romney, you really hate us that much that you'd shoot off one of your own nads to spite your twisted santorous face.

[TaleWgnDg]

22. Uuummm, did you think . . . that it will give MORE not less fuel

to challenge this 1913 law in federal court? Granted, it is a roadblock to many but I believe it's a temporary roadblock. And, with the added ammunition of heterosexual couples . . . the parade will be more populated in a federal challenge.

[sui generis]

24. I have something I've been starting to get upset about

and it's this:

As democrats in general and as people who have to be able to fight effectively, we have self appointed master strategists who say "political expediency" should keep us from doing this or from saying that or from supporting a topic, or that we're "giving fuel" to the other side or that we're somehow wrong for being honest because the other side who is innately dishonest will take advantage of our position/wording/view/whatever.

It's bullshit. I'm putting my foot down. If we can't develop a vocabulary to fight effectively instead of evading effectively, then we're just being covertly manipulated by what we think the evil "they" are going to do.

I know how to fight, both politically and literally, and I know that beyond using an aggressive feint to ferret out an opponent's weaknesses, you have to have the physical skill for the fight or you will lose, marvelous strategy be damned. And if you don't have the skill, get out of the fight, or practice it until you can win.

WHY does that law exist? How is that law being used fairly or unfairly? Address it in a meaningful way and if we have a case for changing the law, then we work hard and we make that case and the law gets changed, and if not, then exclusively relying on a biased judicial interpretation is a weak strategy. Scalia wants to revisit sodomy now, go figure. I would rather see a law that says "gays not allowed" than to see a law being applied unequally and at the discretion of a federal court.

[TaleWgnDg]

26. I have great admiration for and quite agree with your feelings;

.

I have great admiration for and quite agree with your feelings; however, what of the outcome? And, the outcome is the target for all who want equal rights and due process for all Americans in law.

Would it be wiser to push and shove those who believe that the round peg fits into the square hole? Or would it be wiser and more fruitful to wait and then wait some more until this generation dies off?

For example, how long did it take slaves to be free? And then to achieve equal status in law u/ our constitution? and in statutory law that's enforced? How about 350 years. Then, how about women? How long did Abigael Adams, bless her, fight and say to her husband John Adams that women should be enumerated in the constitution of our founding fathers? She knew. As did the suffragettes of the mid-1800s and early 1900s. Women didn't get the vote until 1920.

So, tell me, how long have gays found sunlight? Been able to say "get off my body?" Shout about it or not, at will? Not very long.

Most in the legal profession are aghast and shocked at how the length of time for gays has been very short in law.

Again, I empathize with your feelings. And I stand there w/ you as I do for my own clients and others who are GLBT and their children and their children's children as well as all of their extended families, and supporters. I, too, would be deeply pleased to see immediacy but I truly don't expect it. Nor will I cut off my nose to spite my face by demanding therefore offending others to vote against my goal/outcome!

[Ian David]

14. If a marriage is illegal in your home state, the 1913 law says...

that you can't get married in Massachusetts.

In fact, it's a felony to try, and a felony to facilitate it.

The law was originally written to prevent inter-racial couples from other state from getting married in Massachusetts.

Until Loving vs Virginia in 1967, it was still legal to ban inter-racial marriage.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html

And until the year 2000, Alabama still had that law on their books anyway.
http://en.wikipedia.org/wiki/Miscegenation#United_States

A public referendum removed the anti "race-mixing" (anti-miscegenation) law by a margin of about 60% to 40% opposed.




Yes, in the year 2000, 40% of the voters in Alabama wanted to keep a law on the books against mixed-race marriages, even though the practice was ruled unconstititional in 1967.


See also:

Loving vs. Virginia and Same-Sex Marriage
From Ramon Johnson,
Your Guide to Gay Life.
FREE Newsletter. Sign Up Now!
How Loving vs. Virginia Applies to Same-Sex Marriage
http://gaylife.about.com/cs/gaymarriage/a/lovingvvirg.htm


Also:


..after a statewide vote in a special election, Alabama became the last state to overturn a law that was an ugly reminder of America's past, a ban on interracial marriage (sic). The one-time home of George Wallace and Martin Luther King Jr. had held onto the provision for 33 years after the Supreme Court declared anti-miscegenation laws unconstitutional. Yet as the election revealed -- 40 percent of Alabamans voted to keep the ban -- many people still see the necessity for a law that prohibits blacks and whites from mixing blood.

[sallyseven]

16. Their state does not bar hetros from marrying.

That is the only thing. If oklahoma said you cannot marry an asian and it is not legal then you could not marry an asian in Mass either if your an asian. Remember, of course you don't, when you couldn't marry blacks.

[TaleWgnDg]

25. Why did the SJC prohibit nonresident couples from marrying if

.

Why did the SJC prohibit nonresident couples from marrying if their domicile (where they reside) state prohibits them from marrying?

Because all marriages must comply with the laws of the state in which you are to marry. So, if there's a valid state law in Massachusetts that says nonresident cannot be married if your home state says you cannot be married, then you cannot marry in Massachusetts. It's as simple as that.

In other words, the SJC (Massachusetts Supreme Judicial Court) upheld a 1913 Massachusetts law that says if you are a nonresident in Massachusetts and your home state prohibits you from marrying then you cannot be married in Massachusetts, period. This law applies to pink people, gay people, green people, straight people, minors, folks who cannot marry because they are too closely related, etc.

BTW, I believe that this entire scenario will become a federal case and be brought all the way up to the U.S. Supreme Court. There's so many constitutional challenges to this SJC ruling that it should, and will be, challenged. SCOTUS should rule this 1913 state law unconstitutional as to our federal constitution. That is, if SCOTUS doesn't have a drastic change of face, demeanor, and reasonableness. Even at that, time is on the side of same-sex marriage. Time will be the only issue, however, much time it takes.

[IsItJustMe]

2. Isn't that Ironic. For politiacal timing, that entire situation in MA

couldn't have come up at a worse time for Kerry. That's just my opinion. Don't flame me for having a independent thought.

[sallyseven]

20. Mass gay;s can marry Mass Gays.

So what is the problem. Let those gays petition their states like Mass gays did and get it thru the courts. Lets not be lazy and let the other guy do the work.

[closeupready]

29. Because what if I (non-MA) fall in love with someone from MA?

That's the problem. Among other things, the law apparently dictates that someone from MA can not marry in MA someone from another state, if they plan to move away.

[TaleWgnDg]

28. Uummm, John F. Kerry agrees w/ you . . . n/t

[Ian David]

5. Now we have to research all the non-gay out-of-state marriages...

... so we can let them know their marriages have been nullified.

For example, in some states it is illegal to marry someone who is retarded or "a drunkard."

Some states have a higher age of consent to marry.

Let's find those people and tell them they can't be married anymore.

On the other hand, this might be a good thing. It might say that Massachusetts doesn't want to tread on the rights of other states to do as they see fit.

It may avoid a US Supreme Court decision at least until Unitary Executive Nancy Pellosi appoints new judges in 2006.

[TaleWgnDg]

21. And, it might also say that the SJC gave the gay community

a 1/2 bite of the apple, if you will. Meaning Goodridge is the 1/2 bite of the apple. But more correctly, Goodridge is 90% of the apple. The other 10% will come along in due course. In due course.

I'd rather have about 90% then nothing at all. Thankyouverymuch. The law works very slowly. Slowly, indeed. As for this 1913 MGL that was upheld, I believe that it will go the way miscegenation went, i.e., dumped. But it will take time. Time is the sole issue remaining until same-sex marriage is allowed across America. Again, that is, if SCOTUS retains its present balance! However, if one more justice goes to Bush, then it'll take much much longer.

[DuaneBidoux]

31. Good for MASS. It says okay if they move there thus the state will advance

as all the brightest and best move to Mass and leave backward areas of the country behind. (Don't forget it says the marriage is okay if the couple intends to live in Mass.) In any case, even if Mass recognized the marriage when they returned to their own state the marriage would not be recognized.

[SoCalDem]

6. So...how does one become a "resident"?? Special papers?

or an address? Are renters considered "residents", or are we back to "male land-owners 21 and over"?

Sounds like separate and unequal to me.. If a man and woman want to get married in Boston, do they also have to be "residents"?

[TaleWgnDg]

12. As a legal matter the issue of residency or in law it's called

"domicile" . . . is an easy matter to prove. However, you must be a resident. You cannot fake it, for if you do, then your marriage is null and void. Going back to the issue re legally prove that you are domiciled in a state, it's a SCOTUS case which merely states that if you move into a state then you are a resident of, are domiciled in, that state. Typically, a signed lease, or an affidavit from a landlord at will, or a driver's license, or a utility bill w/ your address on it, registered to vote, typically stuff like that . . .

[Zenlitened]

7. Damn. An old law to prevent -- gasp! -- interracial marriages...

... successfully revived to harass and deny civil rights to another group.

Some values from the "values" crowd, huh?

:grr:

[sui generis]

8. if this is just upholding the 1913 law then

they need to get enough signatures to get the process of overturning that law in motion. That would make the court's decision moot.

[Ian David]

9. Here's more from Associated Press...

<snip>

"The laws of this commonwealth have not endowed non-residents with an unfettered right to marry," the court wrote in its 38-page opinion. "Only non-resident couples who come to Massachusetts to marry and intend to reside in this commonwealth thereafter can be issued a marriage license without consideration of any impediments to marriage that existed in their former home states.

<snip>

"We don't want Massachusetts to become the Las Vegas of same-sex marriage," Romney said. "It's important that other states have the right to make their own determination of marriage and not follow the wrong course that our Supreme Judicial Court put us on."

One plaintiff, Mark Pearsall, called Thursday's ruling "illogical."

"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," said Pearsall, of Lebanon, Conn., who traded vows with Paul Trubey in Worcester in 2004.

In oral arguments before the high court in October, a lawyer for the couples argued that the 1913 law had been unused for decades, until it was "dusted off" by Romney in an attempt to discriminate against same-sex couples.

<snip>

Attorneys for the state argued that Massachusetts risked a backlash if it ignored the laws of other states by letting same-sex couples marry here when their own states prohibited such unions.

More:
http://news.yahoo.com/s/ap/20060330/ap_on_re_us/gay_marriage;_ylt=AszJYwj3JCzhQlCL6BsKjD6s0NUE;_ylu=X3oDMTA3MjBwMWtkBHNlYwM3MTg-

[Ian David]

10. Inter-racial couples from Alabama who married in Massachusetts...

may have just had their marriages anulled, if it was before 2000.

<snip>

At the time that anti-miscegenation laws were ruled unconstitutional by the U.S. Supreme Court, 16 states still had laws prohibiting interethnic marriage. Those laws were not completely repealed until November 2000, when Alabama became the last state to repeal its law. According to Salon.com:

...after a statewide vote in a special election, Alabama became the last state to overturn a law that was an ugly reminder of America's past, a ban on interracial marriage (sic). The one-time home of George Wallace and Martin Luther King Jr. had held onto the provision for 33 years after the Supreme Court declared anti-miscegenation laws unconstitutional. Yet as the election revealed -- 40 percent of Alabamans voted to keep the ban -- many people still see the necessity for a law that prohibits blacks and whites from mixing blood.

http://en.wikipedia.org/wiki/Miscegenation#United_States

[David__77]

13. From a practical standpoint, this isn't bad, for now.

The fact is that it's important that these marriages exist for the years to come. A showdown at a national level will be lost at present. It will take a few years of patient political education and struggle to lay the basis for a great leap in marriage rights nationally. By the way, I say this as a gay man in a long-term relationship.

[TaleWgnDg]

19. Yes, as a practical and common sense point of view, it isn't

such a bad legal ruling. Why do I say that? Well, because it puts a cap-on and ceiling limit, if you will, in a sense upon Massachusetts same-sex marriages, i.e., only Massachusetts couples may marry, period. Again, why do I say that? Because same-sex marriages will be contained, limited. Thus, this will not fuel, additionally, any religion-into-law uber-rightwingnut outcries.

I project this to be only a stop-gap measure because evidentually same-sex marriage will be the law across America. It's inevitable. Cannot be stopped. Only the timeframe remains at issue. S'all.

BTW, establishing legal residency in a state is a very very low threshold to achieve. There's SCOTUS caselaw that sets out how to do so. Stuff like a driver's license, a signed lease, an affidavit from an at-will landlord, a utility bill, a voting registration, etc., etc. and of course the intent to remain a resident in Massachusetts too. However, that timeframe of remaining a resident comes under the "reasonableness" standard.

And, this new SJC ruling will eventually be overturned by SCOTUS on the road to allowing same-sex marriage across America. That is, if the balance of SCOTUS stays w/i reasonable bounds.

[cboy4]

17. Betcha the high court & Gov. isn't opposed to nonresidents spending $$$$

in the state as tourists!!

Certainly not advocating a boycott because I think Massachusetts is great.

I'm just making a point that ass-wipes like Mitt Romney are too homophobic and idiotic (which I realize is redundant) to get it.

[Ian David]

23. Don't blame me. I voted for Robert Reich. n/t

[EvolvedChimp]

18. Well thats where the whole problem started

Under the U.S. Constitution statuses recognized by one state must be recognized by all. That is why there was ever a political drive. Legally it must be all of the states or none of them. This is just an example of how the democrats are becoming the isolationists. A job primarily for red states in the past

[Lexingtonian]

27. sad

Back in the fall I tried and had difficulty extracting a compelling argument from either side's set of briefs. So I have to admit I'm not surprised. If the Rhode Island couple carries on, that could lead to a more favorable ruling yet. My guess is the New York couple's situation may become moot before then, with New York State perhaps legalizing.

Politically it may be a good thing for this not to have worked out yet. If plaintiffs had prevailed it would make same sex marriage laws a far greater matter in this next election, where it's on the cusp. I think that two years from now the debate will have tipped fully and permanently.

The repeal route route against this law is the better and more decisive one anyway. In the state Senate the 27 votes to override a veto are there already, I think. In the state House I believe the count would be the same as for full support for ssm, in the high eighties to mid-nineties, at this point, and 107 are needed. This November is an opportunity to get the state House to, or a lot closer to, that point.

[TaleWgnDg]

32. Ooops, I goofed . . .

.
Ooops, I goofed . . .

In my haste to post this thread, I failed to type out the entire url of the second newspaper article in the OP . . . the second newspaper article is "(Massachusetts Supreme Judicial) Court: Gays Can't Come to Massachusetts to Marry, (AP) by JAY LINDSAY."

The correct url is: http://tinyurl.com/hvtof (tinyurl.com url instead of the AP article url was used bc the AP's url was too damn long. DU software *hates* long urls and spits em out!)

[TaleWgnDg]

33. In my OP I hyperlinked to a G.L.A.D. website

.

In my (above) OP I hyperlinked to a G.L.A.D. website which brings up a .pdf format of this Massachusetts Supreme Judicial Court case, Whiteacre etal v. Department of Public Health etal, __ Mass. __ (#SJC-094356, March 30, 2006); however, findlaw.com has a .hmtl format version of the case at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/16042&invol=1
(Whiteacre etal v. Department of Public Health etal, hmtl format, ct's opinion and dissent, March 30, 2006)