Mass. Lawmakers Consider Repeal Of Out Of State Gay Marriage Ban

[davidinalameda]

http://www.365gay.com/newscon05/04/041205massMarr.htm

The Massachusetts legislature is considering the repeal of a 1913 law that bars issuing wedding licenses to people whose marriages would be illegal in the states where they reside.

But, it also will look at three other bills to block all same-sex marriages in the state.

Shortly after Massachusetts's highest court ruled in 2003 that the state could not bar gays and lesbians from marrying (story) Gov. Mitt Romney declared that the 1913 law prevented town clerks from issuing licenses to couples who do not reside in Massachusetts. (story)

[Redstone]

1. Good for us Yankees!

You guys are seeing some progress in Massachusetts, Vermont, and (finally) Connecticut.

Come on up to New England if you live somewhere else; we have the good grace to treat you like human beings here.

All are welcome.

(Except McMansion-building yuppies, which as DUers, I'm sure none of you are.)

Redstone

[sui generis]

2. uh

:blush:

that would be GUMPY to you sir

[Redstone]

3. But GUMPYs are considerate enough

and have enough class that they don't build McMansions, right?

If so, come on up.

Redstone

[TaleWgnDg]

4. After reading the ENTIRE 365gay.com news article . . .

.
After reading the ENTIRE 365gay.com news article url . . . I say this:

Merely because a bill is filed in the Massachusetts state legislature does not then equate to passage of that bill.

That being said, this 365gay.com news article refers to more than the mere repeal of the Massachusetts statute that denies a Massachusetts marriage to those from out-of-state who's home state prohibits such marriage . . . there's quite a slate of anti-gay bills filed as noted in this article. Most, if not all, of which will never get out of cmte on Beacon Hill. Good, I say. Let em all die a timely death.


Pro-same-sex marriage picketers in front of the Massachusetts Statehouse,
During the Massachusetts Constitutional Convention
March 2004

.

[Lexingtonian]

5. they tried last year

Jared Barrios filed to get the '1913 law' (article 207 secs 11/12) overturned last April or May. It passed the state Senate with more than 30 votes (something like 34) but Finneran refused to let the matching House bill get out of committee. Then Barrios got the Senate to attach an overturn amendment to the budget, and again Finneran balked until it got stripped out.

I'm not too optimistic that DiMasi will get the 2/3 of the House they're going to need (Romney will definitely veto) if the overturn bill gets to the House floor. Might not even get a majority.

Those other bills are a waste of time to even talk about. The Legislature doesn't want to deal with gay marriage, period.

[TaleWgnDg]

6. It is politically inexpedient to pass this bill to repeal that antiquated

.
It is politically inexpedient to pass this bill to repeal that antiquated and, arguably, (both state and federal) unconstitutional law which prohibits out-of-staters from a Massachusetts granted same-sex marriage. Why do I say that. Experience. Long legal and political experience.

1.) It's presently b4 the Massachusetts Supreme Judicial Court; and hopefully the Court will defer to the state legislature, and

2.) The state legislature should "sit on it" for a few years . . . and not do a damn thing.

Again, why do I say that?

To do otherwise, will once again galvanize the political religion-into-law radical rightwingnuts who hold GWBush and the present GOP in congress by the gonads. It will fill their campaign coffers. It will garnish them unnecessary votes. It will assist their position for radical ideologues on the federal judicial bench. It will feed their anti-filibuster crapola. It will cause those idiots to scream and pontificate before the C-Span cameras once again. It will cause more states to pass more anti-gay state constitutional amendments. And, it will push the federal constitutional amendment!

This is politics. Politics is a game of compromise. It's a game of timing. Sometimes more deadly than at other times. This is NOT the time.

Perhaps during this next election in 2006 or 2008, the pendulum will swing in a way to allow more progressive measures in removing that stupid anti-out-of-staters law from the Massachusetts books. Until that time, it is political suicide to do otherwise. And, Jarrett Barrios on Beacon Hill knows this, as does Barney Frank in D.C., and anyone else with their mind in the political and legal scene of Massachusetts and D.C. politics. Barrios should practice what his head says not his heart or his constituents.


Massachusetts Statehouse front steps during
the Massachusetts Constitutional Convention, February 2004

_______________________________________________

Upon edit: If this law is repealed, it will be like a funnel. Picture it. Massachusetts is the funnel of ALL gay marriages in America. By that I mean, out-of-staters can come here, and then return to their home states, which will in turn cause a large number of litigation in their homes states to FORCE their home states to recognize their Massachusetts marriages in their own home states under the federal constitution's "full faith in credit" clause. This is WHY the religion-into-law rightwingnuts have been pushing a federal constitutional amendment to prohibit this from happening.

Granted, this is happening presently whenever same-sex married couples, who as residents of Massachusetts, were married here but then move to another state. However the distinction being is the number of that litigation is small. Very small as compared to the flood gates that will be opened if this law is repealed. And there lies the rub.

[Meldread]

7. That really is a moot point.

You have to consider the fact that New York and Washington are probably going to allow gay marriages in the near future. To my knowledge they don't have a way to keep people from getting married who live out of state. Massachusetts, to my understanding, lucked out by having an old law on the books. If Massachusetts repeals the out of state marriage law then it really won't make a huge difference especially considering that it will likely happen AFTER Washington State begins to allow gay marriages.

Correct me if I am wrong, but it is inevitable and is likely to happen in the next two years. The key hope here is that Democrats who are running for re-election will be able to counter the "gay wedding bell panic" that the Republicans will use with a "look at them they are corrupt and love Tom DeLay" message.

Well that and crossing our fingers hoping that the Democrats have enough balls and backbone to fight against the anti-gay onslaught.

[BR_Parkway]

9. Beyond FF&C, why isn't this being also argued as a "restriction of

religion" issue? If I'm a resident of a state that allows me to marry my partner (or fly off to one like WA) and am married in a church service by a church that says it's ok - then return to my backwoods state of NC - if they fail to recognize or grant the same state level benefits and privileges - they they are picking one religion over another.

Same with the Federal level arguments - basically the gov't is endorsing the Southern Baptists but not the UCC or Episcopal churches - if that isn't a violation of the Constitution, then what is?

Would the Mormons pick up on the same argument to legalize polygamy? Probably, but so what? As long as it's adults and not under-aged - what harm is it to me if several of them want to make a commitment together?

[TaleWgnDg]

10. BR_Parkway, your premise is way off . . .

.
BR_Parkway, your premise is way off . . . and your subsequent attempted building blocks to your erroneous premise are, therefore, way off as well.

First and foremost: No religion grants marriage. AGAIN, a religion cannot marry anyone in America without the express legal authority of state law. It's never been the other way around. Your state laws say who can marry individuals, period.

For example, your state laws say that judges can marry individuals, justices of the peace can marry individuals, clergy can marry individuals and certain others can marry individuals. Your state grants those people the authority to marry individuals, and your state can remove that authority from those people to marry individuals.

So, attempting to apply your facts and circumstances to the law, yes, Massachusetts grants marriage to same-sex couples. A same-sex couple residing in Massachusetts marries in the XYZ religious institution in Massachusetts by a state authorized clergy to do so. This same-sex couple (call them "couple A") then move to Florida. Florida denies couple A recognition of their same-sex Massachusetts marriage. There is no religious constitutional right to challenge the FL denial of couple A's same-sex marriage in FL. Again, because it's not the religion that granted the same-sex marriage; instead, it's the state of Massachusetts through its Massachusetts laws that granted couple A their same-sex marriage.

State civil law authorizes who can marry individuals.
State civil law authorizes who can get married.

All that being said, is not to say that some dummie wouldn't attempt such a boneheaded religious challenge in state and/or federal courts, but it's not a winnable avenue in law.

_____________________________________

edited to include: Mormons and polygamy - bigamy is illegal and unconstitutional. See: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=98&invol=145 (Reynolds v. U.S., 98 U.S. 145 (1878))

[Lexingtonian]

8. It's not an easy call

I'll agree to that. Personally, I think the overturn effort will fail in the House- the 2/3s it will take to get past Romney's veto simply aren't there.

Cote-Whitacre is being heard in September by the SJC, so the verdict is likely going to come out in winter of next year.

I've looked into it somewhat, and to me the arguments against the '1913 law' and DoMA(s) turn out to be rather alike at core, in essence decided on the same set of constitutional guarantees. So from Cote-Whitacre it's not a large step to a lawsuit attacking DoMA and the 'mini-DoMAs' via the FF&C Clause and, perhaps more effectively, the 14th Amendment Privileges And Immunities Clause. The plaintiff couples seem to be the perfect pool from which to take DoMA overturn plaintiffs from, even, representing as they do all five other New England states and New York and carefully chosen/groomed as a set as they are.

I'm personally convinced that Cote-Whitacre is the learning stage and pre-run, in a relatively sympathetic state court, for the hard crack at the federal level for Mary Bonauto. Margaret Marshall may well get to write a second verdict that amounts to a precedent and roadmap nationally. The strategy of solidly achieving and then building principally, carefully, and with great soundness on Massachusetts legalization(s) and jurisprudence is very clear. Positive results in other states are gravy, really, but just about all on far less solid political foundations, really: precarious, at this point. The way I hear of the lawsuits you say are out there to get Mass. ssms recognized, I think there's more of an effort behind the scenes to suppress them in order not to have a counterproductive slew of bogus verdicts from courts in conservative states for a Supreme Court fivesome to hide behind. Have a look at the Wilson v Ake lawsuit story in Tampa for the kind of thing that strikes me as more typical.

You're right that the present moment is not...propitious...for doing much in public to advance gay marriage rights. The Religious Right has had so much of its political "rationales" break up- really, the bottom fall out of its politics- recently that same sex marriage is about the one national topic in which it hasn't suffered massive self-inflicted wounds- which are the fatal ones. Putting up resistance to same sex marriage is perhaps nationally the RR's last major utility and conscious sales point to the nonpartisan voters in whose hands (or minds) majorities rest.

I see the present RR and Republican 'values' ferment and agitation as a sign of the weakness they feel structurally, a sense of their argument (tacit and/or overt) as to why their supporters should stay with them losing large pieces of e.g. the rationales they pretended to about Roe v Wade. They're trying to cover, repair, make up for the lost solidity and shared rationales by increasing their energy and appearance of determination and fervor to what can be done- productive or unproductive as it may be, that's not even important, as long as it suppresses doubt and ridicule of their supporters to tolerable levels.

Personally, I'm wierdly fatalistic/optimistic at this point. I think the Supreme Court has tipped the 'liberal' way on most Culture War issues, has a majority now that sees the country as on the whole far enough to tolerate in sufficient good faith the social changes, the enforcement/extension of equal protection of the laws to all major subsocieties, that are constitutionally right. I think the 10 nutcases being filibustered doesn't matter quite so much anymore and replacing Rehnquist with one won't lead to a difference either. I think the FMA or whatever is in, well, a persistent vegetative state and beyond reviving too. What does worry me is if John Paul Stevens dies before Rehnquist collapses. As for national pollings, I'll leave for another post why any peaking against ssm is unlikely to last and may even have a silver lining.