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The Boston Globe
Marriage rites and wrongs
April 1, 2006
THE SUPREME JUDICIAL Court has ruled that a 1913 law can be used to bar same-sex couples who live in other states from marrying in Massachusetts -- at least when the couples are from states where gay marriage is specifically prohibited. The status of three couples from New York and Rhode Island who applied for marriage licenses in Massachusetts is still in limbo, because those states have not banned same-sex marriage. The Legislature should clean up this confusion by repealing the 1913 statute and leaving other states to enforce their own laws.
The SJC decision, written by Justice Francis X. Spina, rejected a claim from eight couples in six states that Massachusetts is using the law selectively against gay couples. He noted that new license applications, prepared after the 2003 Goodridge decision legalized same-sex marriage in Massachusetts, request information not just about gender but also about prior marital status, age, and whether the applicants are related by blood. And he said nothing in the Goodridge decision gives couples with no intention of moving to Massachusetts the right ''to secure a marriage license that they could not otherwise obtain in their home states."
Judge Margaret Marshall, who wrote the ringing affirmation in Goodridge that the state constitution protects the rights of gays to civil marriage, agreed that the 1913 law itself is not unconstitutional. But she said the three couples from New York and Rhode Island were entitled to present evidence that their states had not expressly prohibited the practice, either by law, constitutional amendment, or court decision. Those cases now go back to a Superior Court judge.
The 1913 law was enacted at a time when states were trying to prohibit interracial marriage, though Massachusetts never did. In the one strong dissent to Thursday's decision, Justice Roderick Ireland, who is black, said for the state to resurrect this obscure law after it had languished unenforced for decades ''is, at its core, fundamentally unfair." He's right. The law may not be unconstitutional, but it is odious, and it ought to be repealed.
Governor Romney and Attorney General Thomas Reilly were on the same side of the case defending the 1913 law, but for different reasons. Reilly supports gay marriage but believes Massachusetts cannot infringe on the laws of other states. Romney opposes gay marriage, as well as civil unions, and has said the 1913 law is needed to prevent Massachusetts from becoming ''the Las Vegas of same-sex marriage."
More than 7,000 gay couples have quietly committed their lives to one another since the Goodridge case took effect in 2004. It seems they have more respect for the institution of marriage than Mitt Romney has for them.