The idea back when miscegenation laws abounded was that Massachusetts would not force its more open standards on other states by letting a mixed-race couple marry here. Otherwise, the resulting legally wed pair might then return to their state of residence. That could lead to the conflict with local laws, possible prosecution, and perhaps a state or federal court case in which the racist marriage law was overturned.
This all hinges on the principle of comity. Domestically, it is the legal concept that states respect each other's local laws, such as honoring driver's licenses or marriages. It is known in practice as full faith and credit clause, formalized in both the U.S. Constitution and various federal and Supreme Court decisions.
Constitutional Note: Article IV, Section 1, is beautifully crisp and the model for this. It reads in its entirety, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
However, beyond the obvious legal and moral issues, another reason that our 1913 laws are untenable is that other states did not and do not reciprocate. There's dumb old Massachusetts shuffling its feet and saying something about playing nice and respecting the other guys' rules. Meanwhile the other guys laugh at us.
Other states have not honored legal Massachusetts, Canadian, Spanish or other same-sex marriages. Comity in a pigs eye!
On this issue too, we have arguably President W.J. Clinton's biggest blunder -- the Defense of Marriage Act (DOMA). He supported and signed this, which gives the states a pass now if they don't want to recognize our marriages. It also encourages the feds to keep discriminatory tax regulations and laws against married gay couples, as well as states from feeling any pressure to honor these marriages or pass SSM laws themselves.
The only purpose to keep the 1913 laws today is to slow the expansion of same-sex marriage outside of Massachusetts. Despite the glib denials of Governor Willard Romney and Attorney General Tom Reilly, these laws are just like reaction to anti-miscegenation in the 1940s and 1950s, except they are used to keep uppity out-of-state homosexuals in their place instead of punishing and limiting Blacks.
A key issue for civil-rights minded legislators would be to put repeal of these odious laws at the top of the agenda for the next session. We have seen that we cannot expect leadership on this from the governor nor from the AG.
Reilly in fact argued before the SJC to keep the laws and as recently at the last debate said:
I support the right of same-sex Massachusetts couples to marry. The 1913 law has no effect on them. This law only affects same-sex couples from other states, preventing them from marrying in Massachusetts if their own states forbid same-sex marriage. I do not support repealing this law.The only amusing aspect of this is that the SJC supported him. The court did not rule on the dreadful, discriminatory nature of the laws and how they were applied. Instead, they found that it was a reasonably written law if taken entire on its own, with all that messy context. As with the anti-SSM amendment current circulating, they threw it to the legislature to make it right. While we are not the only state with such a timid high court, begging the lawmakers to do the deed, we are the one with a state that had one moment of clarity and courage, in 2003 with Goodridge.
So far, the current House and Senate leadership is the same as the last set. They talk a good game and then do nothing on the big issues. Hell, they only passed the health-care bill when forced to or lose tons of federal funds. Likewise, neither body's leaders has acted on these laws any more than they enabled SSM after the 2003 court mandate.
Both Speaker of the House Sal DiMasi and Senate President Robert Travaglini say they are for civil rights, and the former loves to brag about supporting homosexual rights and marriage equality. Yet, they need to show us, not tell us.
This one is too simple. These laws are immoral. They exist solely to discriminate. The AG and governor have ordered them enforced to bedevil gay couples who want to wed. We can't fix federal DOMA from here solo, but we have control over this. The laws must go.
Tags: massmarrier, Massachusetts, same sex marriage, comity, Tom Reilly