Tuesday, November 30, 2004


Massachusetts' light bite is the list of the 11 state legislators who joined in the Liberty Counsel petition to the U.S. Supreme Court to overturn the same-sex marriage decision. According to the Boston Herald (it listed a Connily instead of a Connolly), they are:

Reps. Elizabeth A. Poirier, R-North Attleboro; John A. Lepper, R-Attleboro; Edward G. Cannolly, D-Everett; Christopher P. Asselin, D-Springfield; Philip Travis, D-Rehoboth; James R. Miceli, D-Wilmington; Peter J. Larkin, D-Pittsfield; Robert S. Hargraves, R-Groton; Emile J. Goguen, D-Fitchburg; and Mark J. Carron, D-Southbridge; and Sen. Steven C. Panagiotakos, D-Lowell.

There are 200 legislators -- 160 in the House and 40 in the Senate.

Changing the Rules

In today's follow-up on the Supreme Court's declination to hear Massachusetts' same-sex marriage case, Liberty Counsel's Matthew Staver is still spinning:

The republican form of government is a fragile thing, and it depends on each branch of government respecting its limitations. When one branch of government does not respect its limitations, when it usurps power it has not been given, there is no recourse for the people.

His group is certainly invested in this, claiming to have a couple of dozen anti-same-sex-marriage actions pending. Yet other lawyers say the tack they took here was doomed. We do have federalism with states rights, so that this type of issue is almost always left to the states. In addition and more to this point, the Massachusetts legislature has the process of amendments and laws, so that what's at work on both sides is the checks and balances system.

I think Liberty Counsel may have to look at civics books and legal texts before trying again. Staver's argument about the fragility of our form of government is rhetoric and not supported by history. It is about as believable as his argument in the original effort to prevent Massachusetts marriages last spring when his petition claimed that "marriage as universally understood for millennia of human history will be forever changed; chaos will ensue."

Monday, November 29, 2004

Passivist Judges

Without comment, the U.S. Supreme Court declined to hear 04-420, Largess v. Supreme Judicial Court of the State of Massachusetts. That petition sought to overturn the Massachusetts decision permitting same-sex marriages.

One cannot help but wonder whether the stance of the plaintiffs' attorney was ill advised. The filing asked that Court "protect the citizens of Massachusetts from their own state supreme court's usurpation of power." In wonderfully dramatic -- perhaps overly dramatic language -- it wanted to ensure that we Bay Staters could "live in a republican form of government free from tyranny, whether that comes at the barrel of a gun or by the decree of a court."

Among the counterarguments filed was that the plaintiffs have not shown any injury.

The Longwood, Florida-based Liberty Counsel filed the petition for 11 Massachusetts legislators and lead plaintiff Robert Largess, vice president of the Catholic Action League. This is the same firm that filed the pro-Ten Commandments suit, which the Supreme Court will hear.

Plaintiff attorney Matthew Staver offers quite a few comments on same-sex marriage on his site, including:

Will same-sex marriage hurt my marriage? No, but it will hurt people, and it will destroy the culture. That's what I care about...

...We understand this is a spiritual battle. At the same time, we're mindful of the fact that God placed us here at this time in human history. My ancestors did not foresee this day, but I do. Our Mighty General has called you and me to the front lines. He is leading us into battle and we must follow. I do so with joy.

I don't believe that's an allusion to Ren & Stimpy.

Tuesday, November 23, 2004

Bless Them. Pardon Me.

The anti-same-sex-marriage/pro-amendment folk must not be happy with Massachusetts Senate President Bobby Travaglini this week. He starred in a gay wedding over the weekend. He is supposed to lead the effort to put a vote on the proposed amendment on the ballot in 2005 and shepherd the Constitutional Convention in 2006.

Over the weekend, he delivered a very sincere, moving and well-received toast to bless the marriage of another state senator and a political consultant. The men are long-term friends of his.

As today's Boston Globe reports, "His heartfelt toast has advocates on both sides wondering whether the Senate president has changed his mind on the issue of same-sex marriage." In another time and other circumstances, no one would criticize him for blessing the legal wedding of friends. However, here, now and in this political climate...

In 2003 and early this year, Travaglini tried to dodge the whole issue, hoping the courts would deal with it first. Of course, the joke ended up being on him, when the Supreme Judicial Court did that, but not in the way he envisioned. See an earlier post on his non-efforts.

Thursday, November 18, 2004

Adultery on Paper

Massachusetts is one of five states that -- at least on paper -- consider adultery a felony. The others are Idaho, Michigan, Oklahoma and Wisconsin. It is a misdemeanor in about half the country.

Here, the law is Chapter 272: Section 14, and reads:

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

In practice though, it is hard to find any enforcement. Adultery as with marriage is a civil matter. However, in 1980, police discovered a couple obviously enjoying each others' company in public in a van. They admitted that they were married to other people. He paid a $50 fine, but she fought the charge. She claimed she had a right to privacy, citing abortion and contraception case law. The Supreme Judicial Court figuratively snorted and said those had nothing to do with each other. She lost and 272:14 remains the law of the commonwealth.
Commonwealth v. Stowell, 389 Mass. 171, 449 NE2d 357 (1983).

Too Much Time

Bay State colonists seemed to have had an overly detailed prurient interest in marriage laws. The polygamy and adultry section follows after the single-sentence law on today's books. (The exceptions cited in 207:4 are if you married in good faith when your divorce was not really final or your "dead" spouse alive, you could clean up your mess and stay married.)

Chapter 207: Section 4 Polygamy
Section 4. A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter two hundred and eight, shall be void.

The Charters and General Laws of The Colony and Province of Massachusetts Bay.

1694 AN ACT AGAINST ADULTERY AND POLYGAMY.WHEREAS the violation of the marriage covenant is highly provoking to God, and destructive to families, Sect. 1. Be it therefore enacted by the governor, council and representatives, in general court assembled, and by authority of the same, that if any man be found in bed with another man's wife, the man and woman so offending, being thereof convicted, shall be severely whipt, not exceeding thirty stripes, unless it appear upon trial, that one party was surprised and did not consent, which shall abate the punishment as to such party. And if any man shall commit adultery, the man and the women shall be convicted of such crime before their majesties' justice of assize and general goal delivery shall be set upon the gallows by the space of an hour, with a rope about their neck, and the other end cast over the gallows, and in the way from thence to the common goal shall be severely whipt, not exceeding forty stripes each, also every person or persons so offending shall for ever after wear a capital A of two inches long, and proportionable bigness, cut out in cloth of a contrary colour to their cloaths, and sewed upon their upper garments, on the outside of their arms, or on their back, in open view; and if any persons or persons, having been convicted and sentence for such offence, shall at any time be found without their letter so worn, during their abode in this province, they shall by warrant from a justice of the peace be forthwith apprehended and ordered to be publickly whipt, not exceeding fifteen stripes, and so from time to time, toties quoties.

Sect. 2. And be it further enacted by the authority aforesaid, that if any person or persons within this their majesties' province, being married, or which hereafter shall marry, do at any time after the first of July in the present year, one thousand six hundred ninety-four, presume to marry any person or persons, the former husband or wife being alive, or shall continue to live so married, that then every such offence shall be felony, and the person and persons so offending shall suffer death, as in cases of felony; and the party and parties so offending shall receive such and the like proceeding, trial and execution, in such county where such person or persons shall be apprehended, as if the offence had been committed in such county where such person or persons shall be taken or apprehended. Provided always, that this act, or any thing therein contained, shall not extend to any persons or persons, whose husband or wife shall be continually remaining beyond the seas, by the space of seven years together, or whose husband or wife shall absent him or herself, the one from the other, by the space of seven years together in any part within their majesties' dominions, or elsewhere, the one of them not knowing the other to be living within that time. Provided also, that this act, or any thing therein contained, shall not extend to any person or persons, that are or shall be at the time of such marriage divorced by any sentence had, of hereafter to be had, as the law of the province in that case has provided, or to any person or persons where the former marriage has been, or hereafter shall be, by such sentence had, declared to be void and of no effect, nor to any person or persons, for or by any reason of any former marriage had or made, or hereafter to be had or made within the age of consent, that is to say, the man fourteen years of age, the woman twelve.

Deluge to Trickle

For either anti- or pro-gay marriage advocates, the initial counts of Massachusetts weddings offer plus and minus. The state has recorded nearly 3,000 same-sex marriage certificates, but the rate seems to have dwindled to next to nothing after the initial rush.

The state gives town clerks two months and ten days to file the post-wedding papers. The initial tabulation since May 17th is 2,980 same-sex marriages out of 12,600 total -- 36.5%. The state estimates that the total of same-sex certificates to date will end up being 4,266 at about that same ratio.

Suburban and rural areas have very small percentages of their totals. Boston has had about 21%. A very few traditionally gay-oriented areas, such as Northampton (66%) and Provincetown (97%), have high percentages.

So there may be that many legally married homosexuals this year. Some of them will move to other states. A few of those will seek recognition of their marriages from government agencies, insurance companies, the courts and legislatures.

Meanwhile, new same-sex wedding licenses and certificates have slowed considerably. They may well fall back to levels representing the percentages of homosexuals. There doesn't seem to be any steady flow of couples from other regions trying to get married here. That could change if the state begins to welcome such unions.

Tuesday, November 16, 2004

Death by Attrition?

Massachusetts is still almost two years away from any chance at amending its constitution to forbid same-sex marriages. They would have to have a constitutional convention next year to consider the issue, and if it approved that, could present it to voters in November 2006.

Meanwhile, some of the 11 states that rushed out same-sex restrictions for this year's voting could find those overturned by courts. If that happens and those states recognize Massachusetts gay/lesbian marriages, it could further reduce the drive for an amendment here.

There was a wisp-thin margin of legislators who would put the question on the ballot. They seem to have lost their critical mass in the recent election. Unfortunately for them, the sky didn't fall. There was no chaos following same-sex marriages, no disruption of any type. The pent desire for legal protections and public commitment has slightly increased the number of married couples here. Ho hum.

Very locally, my state senator, Marian Walsh was typical of those whose same-sex-marriage votes helped, even in her very socially conservative district. My Boston neighborhood is pretty left-wing, but it falls into her senate district, which heavily Roman Catholic.

She is from the West Roxbury part of Boston. A few centuries ago, Roxbury was its own city and much larger geographically than Boston. After annexation, Roxbury has been divided into parts of the South End, as well as Roxbury, Jamaica Plain, and West Roxbury. Roxbury is largely African American, Jamaica Plain is mixed Yuppie, Latino, artist, gay, and pinko. West Roxbury is also known as White Roxbury because it is largely Irish-American and Roman Catholic.

While she is a six-term senator who has done quite a bit, Walsh was up against a one-trick pony this time. In reaction to the same-sex court decision and Walsh's vote against an amendment, attorney Bob Joyce ran against her. His only discernible issue was same-sex marriage, which he framed in moral terms. Walsh deserved to lose because she was out of touch on this issue, he said a few thousand times.

She may be on the wrong side for her typical constituent, on this one issue. However, they returned her to the senate with 64% of the vote.

Sunday, November 14, 2004

Okie Amendment

The Oklahoma amendment to its constitution that passed on November 2nd reads:

A. Marriage in this state shall consist only of the union
of one man and one woman. Neither this Constitution nor
any other provision of law shall be construed to require
that marital status or the legal incidents thereof be
conferred upon unmarried couples or groups.

B. A marriage between persons of the same gender performed
in another state shall not be recognized as valid and
binding in this state as of the date of the marriage.

C. Any person knowingly issuing a marriage license
in violation of this section shall be guilty of
a misdemeanor.

As well as letting public and private employers deny benefit to unmarried hetero- or homosexual couples, it looks like the legislators were going for the greatest specificity possible. They must have wanted to head off the type of lawsuit that Bridger-Riley filed, or at least have a good shot in court. Now we'll see whether that backfired.

We may be back to the type of state/nation arguments the original Continental Congress and Constitutional Convention had. Our federated nation put states' rights in its constitution. On the other hand, that works in no small part because in general one state recognizes the acts of another when it crosses borders -- driving licenses and marriages, for example.

Friday, November 12, 2004

Larry, Darryl and Darryl

It's not really anything-for-a-buck reasoning, but Rev. Carter Heyward, an Episopal priest in Cambridge, Massachusetts, published an apology (in the classic sense) of why she performs same-sex marriages.

The short version is that people asked her, she's a lesbian, and she figured it was her duty. With her thinking cap on, she divides up her reasons into:
  • Pastoral responsiblity as a priest
  • Strategy for social change
  • Canons and prayer book do not forbid marriage between persons of same sex
  • Political situation in the Commonwealth of Massachusetts
  • Unity with the church
  • Different roles to play in the church at this time

Each item has a paragraph with the theology and politics behind it.

She writes:

In this context, I find myself “marrying folks” because, against the tradition of Christian marriage which is patriarchal to its core, marriage between persons of the same sex has become a momentous justice issue in relation to which Christian churches that profess a love for Jesus as Liberator, Healer, and Reconciler should be leading the way.

That shows how shallow I am. Some straight friends, then some gay friends, asked me to solemnize their marriages. I could. I did.

Friday, November 05, 2004

OK 2

I still can't find the whole suit, but I did get some details, including:
  • The attorney filing the suit for the two couples is civil-rights and employment litigation specialist Kay Bridger-Riley.
  • Mary Bishop and Sharon Baldwin, who had the civil union, are editors for the daily newspaper, the Tulsa World.
  • The action seeks to overturn the state constitutional amendment that passed in this week's election.
  • It also challenges the U.S. constitutionality of the federal Defense of Marriage Act, particularly the provision that allows individual states to deny reciprocity by not recognizing same-sex marriages performed elsewhere.
  • The civil suit claims that the four women are denied rights and privileges granted other Oklahoma residents and U.S. citizens, specifically that one couple cannot enter into a marriage and the other does not have recognition of their civil union.
  • Bridger-Riley said, "There are over 1,000 different rights and privileges and immunities that are denied to same-gender couples that are in the same situation as heterosexual couples."
  • The suit's defendants are Oklahoma Attorney General Drew Edmondson and Governor Brad Henry, U.S. Attorney General John Ashcroft, and President George W. Bush.

Tulsa Tussle

Against the spirit of the moment, two lesbian couples filed a federal lawsuit in Tulsa, Oklahoma. They want a Massachusetts-style court decision granting one of them (Mary Bishop and Sharon Baldwin) the right to marry and the other (Susan Barton and Gay Phillips) recognition of their civil union that they legally had in Vermont three years ago.

I haven't been able to read the suit yet. However, they have a much harder argument to make there than the parties did in Boston.

The Oklahoma law has been gender-specific since 1925. In addition, it is not nearly as strong in describing marriage as a civil contract as Massachusetts is. While I am a native of Oklahoma, I would not have picked that state for a court battle.

You can browse the Sooner statutes.

Even before the recent constitutional amendment limiting marriage to one man/one woman, the statutes included a 1996 restriction of:
  • A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage. (43 O.S. 2001, § 3.1)

The 1903 statute was spongier and probably easier to challenge. Its definition read:
  • Marriage is a personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained or abrogated as provided by law. (43 O.S. 2001, § 1)

By 1925, the Oklahoma Supreme Court had interpreted who is qualified narrowly, as:
  • "Marriage" as at common law creates the status of husband and wife under the law of this state. Whenever the minds of the parties meet in a common consent thereto, the marriage immediately arises. It is a contract between the man and woman, each accepting the other into the ties of that relation, neither remiss to its possible sorrows, nor the enjoyment of its incidental pleasures. Mudd v. Perry , 235 P. 479

This specificity makes this lawsuit a lot tougher than the state suit of the much vaguer Massachusetts statutes. Absent federal guidelines, this is a hard sell.

As the Oklahoma suit becomes available, I'll see what their arguments are.

Wednesday, November 03, 2004

11 Steps Back

As everyone seemed to predict, the 11 states that had ballot proposals defining marriage as between one man and one woman passed them yesterday. In the mid-term, this likely means that same-sex couples who legally marry in Massachusetts will begin court action when their marriages are not recognized in new residence states. Certainly to be continued...

Amusingly enough, the highest percentages were in the poorest and the most traditionally politically reactionary states, and proud of it, by gum. Those states with higher percentages of college-educated citizens still passed the proposals by smaller margins.

The approval percentages ran:
  • 86% -- Mississippi
  • 77% -- Georgia
  • 76% -- Oklahoma
  • 75% -- Arkansas
  • 75% -- Kentucky
  • 73% -- North Dakota
  • 66% -- Montana
  • 66% -- Utah
  • 62% -- Ohio
  • 59% -- Michigan
  • 57% -- Oregon