In The Public Square: Responsible Voices on Family Issues
Massachussetts Marriage Ruling has Implications for the Entire Country
by William C. Duncan
When the Massachusetts Supreme Judicial Court ruled that marriage in that state had to be redefined to include same-sex couples in 2003, there was an immediate concern that the ruling might have effects on other states. Massachusetts law, however, made clear that a couple could not get a marriage license in Massachusetts if the marriage they sought was not allowed in their home state.
Not content to change the law of only one state, the attorneys who had secured a redefinition of marriage in Massachusetts also challenged Massachusetts’ residency requirement for marriage licenses so that same-sex couples from other states could go to Massachusetts to marry before returning to their own states to seek to have those marriages recognized. They claimed that the law violated not only the Massachusetts Constitution but also the U.S. Constitution’s privileges and immunities clause.
Last Thursday, the Massachusetts Supreme Judicial Court issued its decision
in this case, upholding the law, but with some reservations that may have
significant effects on the marriage debate nationally.
The formal decision of the court was extremely brief, encompassing only two
points. First, the court ruled that the residency requirement was unconstitutionally
valid. The decision, however, also said that same-sex couples from other states
seeking Massachusetts marriage licenses should be allowed to present evidence
that their home state would recognize the marriage. In this case, this means
that couples from Rhode Island and New York who had sued Massachusetts will
get a chance to prove in court that their home states would allow same-sex
marriages to be given legal effect.
The decision is somewhat confusing, though, because there was no majority opinion containing the reasoning behind the decision. Rather, there was a result followed by four written opinions representing varying combinations of justices (only one dissenting). In bare summary, three justices believed the residency requirement violated no constitutional guarantees; three other justices hesitantly agreed but wanted to allow nonresident couples to show their states might accept same-sex marriages; and one justice disagreed with all the rest, arguing that Massachusetts should ignore the “discriminatory” marriage laws of the other states.
The first practical effect of this decision is to allow Massachusetts to continue to prevent same-sex couples from coming to Massachusetts to circumvent their home state’s legal definition of marriage. The door, however, may soon be opened a crack (depending on the result in the case involving the Rhode Island and New York couples) for couples from states where the marriage law is arguable not absolutely clear. No state, other than Massachusetts, has ever redefined marriage to include same-sex couples, but this court decision seems to imply that in Massachusetts, its courts can decide for other states whether they will recognize same-sex marriages.
As a result, the other practical result of last Thursday’s decision is to underscore the importance of state laws preserving the legal definition of marriage as the union of a man and a woman. Even the most hesitant justices of the SJC recognized that Massachusetts should not provide licenses to couples from states with statutes or constitutional amendments clearly defining marriage.
Without these kinds of laws, however, Massachusetts courts may be able to decide that same-sex couples from other states can marry in Massachusetts. This would then create the first opportunity for advocates of redefining marriage to import Massachusetts’ marriage policy to other states. This also means that those who have argued in the past that clear marriage laws and amendments are unnecessary have been conclusively rebutted by the SJC.
There is one more important thing we learn from this recent decision. That is, that the advocates of redefining marriage are only nominally committed to respecting each states’ power to make its own marriage laws. When they sued states like Massachusetts to get marriage licenses, they trumpeted the argument that they were only relying on state constitutional arguments. This was a strategic choice based in part on their belief that current federal courts will not accept their novel arguments. When states do not buy their arguments, though, we see that they are not averse to using federal claims to browbeat hesitant states into abandoning their policies in favor of retaining the definition of marriage they have always had.
Mr. Duncan is director of the Marriage Law Foundation www.marriagelawfoundation.org,
a charitable, non-profit organization that provides legal resources to defend
and protect marriage.
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