Wednesday, October 05, 2005

Out-of-Staters Get Hearing Thursday

Tomorrow, Attorney General Tom Reilly gets to play the weasel again. His office has to try to defend his denial of marriage licenses to out-of-state same-sex couples. He invoked a 1913 anti-interracial law still on the books to claim this authority.

GLAD's attorney arguing the case, Michele Granda said, "The state is doing exactly what Goodridge said it can not do...denying marriage to these same-sex couples simply because they are same-sex couples."

In a report in 365Gay, Superior Court Judge Carol Ball upheld the 1913 law. However:
In her ruling, Ball said she was "troubled" by the state's decision to suddenly begin enforcing the law after gay marriage became legal in Massachusetts. But she said the law was being equally applied and was not discriminatory because the state has a reason to ensure that marriages approved in Massachusetts are valid in other states.
GLAD has a four-pronged attack for the appeal:
  • Goodridge is the law: The Goodridge opinion recognized that the equality and liberty protections of the state constitution prevent the state from barring same-sex couples from marriage simply because they are same-sex couples. Goodridge thus trumps 1913, which is being used by the state to do exactly what Goodridge said the state could not do.
  • Discriminatory intent: Before May 17, 2004, the Commonwealth never took any action to bar non-residents from marrying who could not marry in their home states. Governor Mitt Romney revived the 1913 law expressly because of his opposition to the marriages of same-sex couples.
  • Privileges and immunities clause of the U.S. Constitution: This clause ensures that a citizen of another state who travels to Massachusetts wonĂ‚’t be treated unfairly simply because they live somewhere else. The application of 1913 violates this clause.
  • 1913 does not apply to all states and territories: The Commonwealth ignores the technical terms of the 1913 law in order to prevent all same-sex couples from throughout the country from marrying here. The 1913 law itself only applies to a subset of states that declare the marriages of same-sex couples to be void

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