Let's Trash 1913 Laws!

Same-sex-marriage court opinions seem to favor unintelligent design. In fairness, they are not really random, but they are certainly not linear and only slowly evolutionary.

Specifically, last week's Massachusetts Supreme Judicial Court's 6-to-1 ruling that the 1913 anti-miscegenation law pair was well written-- hence, enforceable -- is an oddment at best. Many of us, and the dissenting justice, consider this clearly inconsistent with the Goodridge decision that formed the basis for SSM here.

It reminds us of research published in medical journals -- leave burns open; no; ointment only; no, salve and gauze; no, open was right -- and so it went for years. In the current court case, we have a mandate to permit SSM, based on the double principles of commonwealth marriage being a civil contract first and foremost, coupled with our laws requiring gender equality.

Then last week in Cote-Whitacre, the erstwhile activist judges were as passive as the attorney general on the issue of whether out-of-state couples could wed here. Justice F.X. Spina's majority opinion is often specious and mushy. For example, he claims that the law-pair is gender-neutral. In fact, the 1913 law had not been enforced and after SSM began here, under orders from AG Tom Reilly and Gov. Mitt Romney, it is only used as a cattle prod to shock away any gay couples from out of state. The trigger for enforcement is when a town clerk gets an application from a pair of men or a pair of women. Suddenly the demands for residency proof and either a sworn statement that they intend to remain in Massachusetts for a sworn statement from their state officials that they have no law forbidding SSM there become the hurdles to a license.

What Now?

At this point, the commonwealth's highest court has ruled and this is clearly not a Federal issue. We have contacted our General Court senators and representatives and shall waste the electrons and stamps on Romney and Reilly. You should do the same.

The laws, Chapter 207, Sections 11 and 12, forbid marrying a couple if the union would not be legal if performed in their home states. This was meant originally 1) to keep interracial couples from marrying here and returning to their home states claiming to be wed, and 2) to show good faith with other states, not causing them any legal grief.

Over a dozen state are busy adding DoMA laws and amendments, which spit on Massachusetts marriage law. We should not be the business of helping them reinforce what would be discrimination here. There are already over 7,000 SS married couples here. We have neither fence nor armed border guards to keep them captive here. It's too damned late to pretend otherwise. Nor should we consider doing so.

Who Stands Alone?

The dissenting SJC judge, Justice Roderick L. Ireland, is a legal hero and an clear-sighted jurist trying to lead the addled and lost, unsuccessfully. Click the PDF of the decision to read what the other justices surely heard before punking out of the right action. His dissent begins on page 23.

For example, not that he notes the ill will to a politically unpopular group in directing this never-used law suddenly be given credence and power. To wit:

It is no secret, then, that the changes to the notice were made to limit same-sex marriage to residents of Massachusetts. The additions to the marriage application essentially rewrite the rule regarding gender-neutral marriage that Goodridge established and require clerks to use the gender of nonresidents as an impediment to marry. It was done with animus, and it offends the equal protection doctrine...

Moreover, the Commonwealth's resurrection of a moribund statute to deny nonresident same-sex couples access to marriage is not only troubling and, as the Superior Court judge stated, offends the "spirit" of Goodridge, but also is fundamentally unfair. This law has not been enforced for almost one hundred years, and certainly never with the vitriol currently on display. To use a law that has not been used for over one hundred years to deny same-sex couples access to marriage contravenes the public policy of this State to protect all persons, including homosexuals. We have seen this before, and we declared "history must yield to a more fully developed understanding of the invidious quality of the discrimination" before us. Goodridge, supra at 328. "One of the most important purposes to be served by the Equal Protection Clause is to ensure that 'public sensibilities' grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of the government." ...The Commonwealth's resurrection of these statutes is deeply rooted in discriminatory notions of marriage, which we have soundly rejected.

The fantasy underlying the decision is that by forbidding out-of-staters who come from DoMA jurisdictions will create an insurmountable fence permanently saving the Virginias and Texases from having to deal with the contagion of married homosexuals. Balderdash!

The Brownie Scout model -- we sitting politely, quietly with folded hands, proffering a good example of a obedient child -- neither sways minds nor inspires change.

Some newspapers and bloggers have implied or said that we should pretend that this law-pair is well-written, so it should remain. Others don't want to rock any more boats. They want the SSM to settle beyond the two years it has before advancing equality and fairness.

We can ask, is four years the right time to wait to be fair? Is nine years the number? Is it zero more?

Looking at the commonwealth's checkered history, particularly on race, makes the current issues sharp. For crying out loud in a bucket (as my mother said when she came close to swearing), we need look no further than the Bay Colony, than Massachusetts, than Boston to see the harm in fairness delayed.

This was one of the original slave owning colonies and states and our wealthy shipping magnates continued selling slaves to the South and overseas well into the Civil War. A few of our populous decried slavery, other profited, most did nothing. Abolition was slow in gaining support here; we had a few outspoken heroes and many supporters of the rights to sell slaves, return runaways and not offending slave states.

Nor was the public united at all in women's suffrage. We followed a similar torturous path as other states in being dragged to fair treatment of women.

Thinking that Federal imposition of integration through court decisions, executive orders and Congressional action had broad national support for equality issues is delusion or ignorance. When asked, voters, as they almost always do, want things as they know them. They did in the 1950s and 1960s with segregation. They do now with same-sex marriage, civil unions and gay rights. They do until a courageous legislature, governor, court or President leads them otherwise.

Amusingly, on this issue I find myself agreeing with a Globe columnist with whom I often disagree. In Sunday's paper Eileen McNamara quotes Ireland extensively. She also thinks that he alone saw the essential nature of the case.

As she wrote:

His opinion got scant attention last week, but one inevitable day, when the right of homosexuals to full participation in the civic life of this country is universally established, legal scholars will find the roots of social change as much in Ireland's stinging dissent as they will in the stirring language of Chief Justice Margaret H. Marshall in Goodridge v. the Department of Public Health.

She also ridicules the majority opinion that other states will come around to honoring our same-sex marriages, if only we prohibit their SS residents from marrying here. "Well, hope springs eternal, but wishing on a star is a risky legal strategy when the stakes involve fundamental human rights."

Well about 150 years ago, Massachusetts eventually got over accommodating other states on slavery. There simply are times that call for right action.

If you have not contacted you legislators, this is a good day to do so.

Note: To see the current map of the country's current marriage laws, see the Human Rights Campaign. We clearly have need for right thought and right action.