Untrue Truth

A wonderful pseudo-memoir that illustrates 19th century Massachusetts and New England marriage law is widely available in etext for free. It is billed as Seven Wives and Seven Prisons; Or, Experiences in the Life of a Matrimonial Monomaniac: a True Story by L.A. Abbott and dated 1870. However, it is historical fiction.

In it, the protagonist goes to jail seven times for falling afoul of marriage laws. One example of his troubles in Massachusetts includes:

They took me to Northampton and brought me before a Justice, on a
charge of bigamy: The sheriff who arrested me, and the relatives who
accompanied him were willing to swear my life away, if they could,
and the justice was ready enough to bind me over to take my trial in
court, which was not to be in session for full six months to come.
Those long, weary six months I passed in the county jail. Then came
my trial. I had good counsel. There was not a particle of proof that
I was guilty of bigamy; no attempt was made on the part of the
prosecution to produce my first wife, from whom I had separated, or,
indeed, to show that there was such a woman in existence. But,
evidence or no evidence, with all Worthington against me, conviction
was inevitable. The jury found me guilty. The judge promptly
sentenced me to three years' imprisonment in the State Prison, at
Charlestown, with hard labor, the first day to be passed in solitary
confinement.

Sign here, little girl

In a vestige of British common law to colonial law, Massachusetts still differentiates between types of contracts it allows married minor women. As in other states, a contract with a minor is not valid or binding. The exception as defined in the following Massachusetts law is for a female minor who marries. Once married, she can become an agent for selling real estate that she and her husband own in common.

Chapter 189: Section 6 Effect of signature of married minor woman
The signature of a married woman who is a minor affixed by her to any instrument relating to the conveyance of land of her husband shall have the same effect as if she were of full age.

FIFO

Cynics can reasonably point out that Massachusetts was the first state to institutionalize slavery and was among the first to forbid interracial relations and marriage. Also, anti-slavery only took root here when it was obvious that slaves were did not make economic sense without large farms.

Yet, Massachusetts was the first to repeal its prohibition on interracial marriage, in 1843. It was over 105 years until California overturned its similar laws. While such laws were no longer enforced, they remained on the books in the United States until June 1999, when Alabama finally repealed the last one.

More Dancing

Yesterday, courage failed or caution prevailed, depending on your view. Three same-sex married couples dropped their suits challenging the Defense of Marriage Act (DoMA). Their attorney, Ellis Rubin, in Florida figured this was not the time to gamble with the conservative U.S. Supreme Court. This followed a strategy conference with the director of the ACLU Lesbian and Gay Rights Project.

His case was considered weak in that his clients traveled to Massachusetts or Canada for marriages. When they returned to Florida, they sought legal recognition of their status. A federal judge there recently dismissed two cases. This followed U.S. Supreme Court's refusing to hear a challenge to Florida law prohibiting adoptions by homosexual couples, even though the state allows them to be foster parents.

Equality Campaign Executive Director Robin Tyler said her organization would work more at the state level, trying to change laws. A statement on the Website includes her comments:

The couples involved in the legal cases, Rev. Nancy Wilson and Dr. Paula Shoenwether, who were married in Massachusetts, and Rev. Phyllis Hunt and Vilia Corison, married in Canada, were very courageous in seeking their Federal equal rights in Florida, a state which is years behind in extending civil rights to their very large lesbian and gay population.In the harshest of times, these couples stepped up to resist, in the harshest of states.

More Colonial Options

The basis for modern Massachusetts marriage and social-relations law is the colonial versions. In 1642, fornication could lead to forced marriage. The Bay Colony law included:

It is ordered by this Court and Authoritie therof, That if any man shall commit Fornication with any single woman, they shall be punished either by enjoyning to Marriage, or Fine, or corporall punishment, or all or any of these as the Judges in the courts of Assistants shall appoint most agreeable to the word of God. And this Order to continue till the Court take further order.

Cheap Moral Outrage

$30 was more meaningful at one time in Massachusetts. For the unmarried that is maximum fine for fornication. Commonwealth law Chapter 277: Section 39 defines that as "Sexual intercourse between an unmarried male and an unmarried female."

That seems to let homosexuals off the hook. Also, apparently if either offender is married, he or she hops from fornicator to adulterer.

However, the penalty for being convicted is not too onerous.

Chapter 272: Section 18 Fornication
Whoever commits fornication shall be punished by imprisonment for not more than three months or by a fine of not more than thirty dollars.

One must wonder how flagrant the violators would have to be to face this charge, and whether anyone enforces this law today.

States Rights and Rites

The first PING! of interstate same-sex-marriage court sniping was heard yesterday. In Tampa, Florida, U.S. District Judge James Moody refused to force Florida to acknowledge the Massachusetts marriage of a lesbian couple. Lawyers and observers on all sides expect this fight to go to the U.S. Supreme Court and for same-sex couples to lose such decisions in lower courts on the way. (The case is Wilson v. Ake. )

Moody's decision includes:
In short, plaintiffs' argument is that, given their recent "civil rights revolution," the United States Supreme Court is likely to declare that same-sex marriage is a fundamental right that is protected by the Constitution.

Plaintiffs are asking this court to create such a fundamental right immediately, before the Supreme Court revisits the issue of same-sex marriage. But that is not this court's role. This Court is bound to follow the precedent established by the Eleventh Circuit Court of Appeals and the United States Supreme Court.

None of their precedents acknowledge or establish a constitutional right to enter into a same-sex marriage.

The couple is a minister, Rev. Nancy Wilson, and a photographer, Paula Schoenwether. After 27 years together, the Bradenton, Florida, couple wed on July 2, 2004, in Provincetown, Massachusetts. Upon returning home, they sued for recognition of their status. Florida has a one man/one woman marriage law.

The Boston Globe cited Northwestern University law professor Andrew Koppelman, law professor at Northwestern University as saying, "The tougher challenges will come from same-sex residents of Massachusetts who wed and then move out of state or are traveling in other states and seek recognition of their marriages."

Moody's decision reads in part:
Adopting plaintiffs' rigid and literal interpretation of the full faith and credit [clause] would create a license for a single state to create national policy....Florida is not required to recognize or apply Massachusetts' same- sex marriage law because it clearly conflicts with Florida's legitimate public policy of opposing same-sex marriage.

Here a Vote, There a Vote

It seems most key U.S. Supreme Court decisions are 5-4. The past presidential popular vote was very close. So, perhaps it won’t surprise anyone that the vote to put the same-sex marriage amendment on the ballot in Massachusetts is unsettled.

In today’s Boston Globe, an analysis comes slightly short of saying the votes are no longer there to provide the necessary 101 out of 200 legislators to put the question to a 2005 constitutional convention and subsequently to voters in 2006. It is a typical Globe hedging assessment. May, might and could figure prominently.

Same-sex marriage opponents in and out of state had hoped for a red-state style backlash. What they got on the first vote last March was 105 for the amendment and 92 against. Since then:

• Two anti-gay marriage representatives lost to pro candidates.
• Three antis have resigned from the House
• Two new senators are likely to favor the amendment
• Three new representatives and one new senator are likely to oppose the amendment.

Until the incumbents and new lawmakers re-declare or declare, a vote outcome is unsure. The Globe figures it is a narrow defeat for the amendment.

If that happens, Massachusetts will continue to permit same-sex marriages. Opponents have an increasingly harder sell in light of the recent experience. As House Speaker Sal DiMasi said, “Gay marriage has been in effect for a long time, and the world hasn’t collapsed.”

Ex-Tsk Tsk

Adultery is still a crime in Massachusetts. The criminal provisions of the commonwealth's marriage law doesn't cut divorced partners any slack.

Chapter 208: Section 40 Cohabitation after divorce
Persons divorced from each other cohabiting as husband and wife or living together in the same house shall be held to be guilty of adultery.

And the penalty for such criminal activity (although rarely brought to bear) is:

Chapter 272: Section 14 Adultery
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.

Stringy Solemnizations

Massachusetts marriage solemnizations are definitely the way for a cheapskate to go. Solemnizers are limited by law in fees.

State law (Chapter 262: Section 25) caps the fee at $75 in the solemnizer's town or $125 anywhere else in the commonwealth. If the solemnizer provides flowers, music, a photographer, the location or unofficial marriage certificate for the couple to leave with, the solemnizer pays for those out of pocket and gets no reimbursement.

Solemnizers can charge extra for:
...prenuptial counseling conferences, rehearsals, and other special requests by the couple whose marriage is being solemnized; provided, however, that the amount of these additional charges must be disclosed in writing to the couple whose marriage is being solemnized at least forty-eight hours prior to the rendering of these services.

Law Bender by Gender

One wonders whether states that permit same-sex marriage have to fine-tune related laws. For example, the incest/relationship affinity laws here presently read:

Chapter 207: Section 1. Marriage of man to certain relatives
No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister.

Chapter 207: Section 2. Marriage of woman to certain relatives
No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother's husband, daughter's husband, granddaughter's husband, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother.

Logically, the legislature would tweak these. Are they waiting until after 2006 to see if there is a state constitutional amendment?

Clever These Americans

I hadn't thought in those terms, but the (Southern) Baptist Press quotes a Princeton University law professor, Robert P. George, as saying that where same-sex marriage becomes legal, churches may have to perform these ceremonies or risk losing their tax-exempt status. Doubtful, very, very doubtful... Every legal indication is that freedom of religion trumps this, much as churches can still discriminate in hiring and keep their tax exemptions.

Of course, in Massachusetts, there is still a clear distinction between religious and civil ceremonies, as there has been from colonial times. This is clearer and cleaner in Massachusetts, but implicit elsewhere. U.S. clerics have never had to perform any marriages they oppose.

Bastardy Laws

Massachusetts is one of the states with definite ideas about legitimate offspring. To wit, if the parents' marriage is legally void:

• Because of incest (consanguinity or affinity between the parties), any offspring are illegitimate. (General Laws, Chapter 207, Section 15.)
  
• Because either parent is to young to have legally married, the kids are legitimate. (General Laws, Chapter 207, Section 16.)
  
• Because either parent is insane or an idiot, any issue is legitimate. (General Laws, Chapter 207, Section 16.)
  
• Because of the divorce oops, when one parent discovers after the fact that a former marriage was still legal (but it was an honest mistake), the children are legitimate. (General Laws, Chapter 207, Section 17.)

Nervous Colonials

While Massachusetts has long had a reputation as a very liberal state, it is only deceptively and sporadically so. For example, even before the Revolutionary War and into the Civil War, Massachusetts was a leader and key player in slavery. With Rhode Island, it was one of the first colonies to import and sell slaves. Later when the scale of New England agriculture did not support the economics of slavery, Massachusetts provided the ships, captains and crews that kept the triangular slave trade in business.

Yet, it also has the reputation as a hotbed of abolition. Even here, it depended on whether you profited from the slave trade. One anti-slavery leader, for example, the Federal Street Church's Rev. William Ellery Channing, did not make his abolition speeches from his pulpit. This founder of American Unitarianism had go to other churches and public halls for that. The board of his church (which later became the Arlington Street Church) forbade him from discussing slavery.

During the colonial period, Massachusetts was not the first to pass laws against interracial marriage. That distinction belongs to Virginia, which passed the first in 1691. "(T)he punishment was banishment from the community. By 1750, Maryland, Massachusetts, North Carolina, Delaware, Pennsylvania and Georgia passed similar laws."

The Massachusetts version included a whiteness test. A white person would marry someone with one black and three white grandparents.

Put Asunder

"The first American couple to divorce obtained their decree in 1639 from a Puritan court in Massachusetts. Anecdotal evidence indicates that untold numbers of other colonists simply deserted their unwanted or offending mates."

Divorce: An American Tradition, Glenda Riley, Oxford University Press, 1991, pp. 3-4. (The University of Nebraska Press reissued this book in 1997.)

The History Channel claims the later date of January 5, 1643, and provides these details:

In the first record of a legal divorce in the American colonies, Anne Clarke of the Massachusetts Bay Colony is granted a divorce from her absent and adulterous husband, Denis Clarke, by the Quarter Court of Boston, Massachusetts. In a signed and sealed affidavit presented to John Winthrop Jr., the son of the colony's founder, Denis Clarke admitted to abandoning his wife, with whom he had two children, for another woman, with whom he had another two children. He also stated his refusal to return to his original wife, thus giving the Puritan court no option but to punish Clarke and grant a divorce to his wife, Anne. The Quarter Court's final decision read: "Anne Clarke, beeing deserted by Denis Clarke hir husband, and hee refusing to accompany with hir, she is graunted to bee divorced."

Road to Rhode Island

Apparently seeking clarity rather than conflict, a married lesbian couple requested that a Rhode Island school system extend health-care benefits to the spouse of a retired school teacher. The distance between Swansea, Massachusetts, where the couple lives, and Tiverton, Rhode Island, where one of them taught for 27 years is only 12 miles. However, crossing the state line takes them into the twilight zone of undefined laws and regulations.

Rhode Island doesn't forbid recognition of same-sex marriages performed in other states. It says nothing. Two Committee members favor extending benefits. The other is undecided.

The Tiverton School Committee turned to a state Superior Court for an opinion on whether it can extend the benefits. It asked Judge Stephen Fortunato whether the Committee has the right to extend the benefits as it would to other married couples. The Committee's filing to the judge cited Rhode Island's lack of clear policy for same-sex marriages.

Lynette Labinger is the ACLU attorney for Cheryl McCollough, the retired teacher. The Boston Globe quotes her as saying, "The only issue as far as we're concerned is the agreement between the school department and the union, which recognizes a marriage as long as it's valid in the state it's entered in." McCullough and Joyce Boivin married in June.

Meanwhile, in December, the Committee added Boivin to McCoullough's family health plan, but the women had to pay the extra $500 a month. They will get a refund if the judge rules in their favor.