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May 5, 2004

Nevermind the Rumbling

Even without reference to the reality that it's politically shrewd for supporters of same-sex marriage to dampen the dispute at this time, one ought to approach dismissive admonitions that controversy is unmerited with a high degree of skepticism. In the case of Jeffrey Rosen's "The Gay Marriage Anti-Climax. Yawn.," the image that comes to mind is of a man pointing toward a layer of accumulated soil on a volcano. Only by closing one's ears to the rumbling is it possible not to notice the underlying turmoil.

Opponents of gay marriage fear that, after May 17, same-sex couples will flock to Massachusetts from other states, get married, and return to their home states demanding recognition of their new marriages. These fears are unfounded, thanks to a provision of the Massachusetts marriage law that refuses to recognize marriages celebrated in Massachusetts if they take place between parties domiciled in a state that does not recognize the marriage as valid. This provision--designed to prevent out-of-staters from evading their own local marriage laws--means that a same-sex couple from New York traveling to Massachusetts for the weekend to get married should be turned away at the altar. And, despite the assurances of the New York attorney general that his state will recognize any valid Massachusetts marriages, the marriage would be invalid in New York even if the couple managed to return with a marriage certificate. Since the marriage can't be valid in Massachusetts, it can't be valid in New York.

Gabriel Rosenberg, among the most circumspect advocates of same-sex marriage across whom I've come, takes a somewhat different tone:

There are other interpretations of the law, though. Attorney General Reilly expressed the opinion that the 1913 law only applies to couples from the 38 states that have passed DOMA legislation expressly prohibiting same-sex marriage. That is his opinion would still allow same-sex couples from New York, Connecticut, and the like to marry in Massachusetts. This is quite an important distinction, because for example, New York's Attorney General Spitzer has issued an opinion that while local New York officials should not issue licenses to same-sex couples, they should recognize those marriages lawfully entered into elsewhere. We see here a rather dizzying scenario for determining whether the same-sex marriage of New York couples entered into in Massachusetts is valid. It's valid in NY if it was lawful in MA, and it's lawful in MA as long as it would not be void if contracted in NY.

The salient point is that only the whim of a handful of officials is required to undo all of the guides and structures that Rosen claims as balms for the anxiety. In Massachusetts, at the source of the problem, it seems very likely that at least some town clerks will hand out official documents that will essentially become litigation licenses for same-sex couples from other states. Some have declared as much to The Boston Globe. (What a thrill of power for them!) Meanwhile, state officials are hinting at legal repercussions for mutinous townies. Even so, Rosen probably wouldn't think it matters:

And, even in the unlikely event that the legislature bows to the tourism industry [which will seek a marriage boom], a well-settled body of law says that states don't have to recognize the marriages of their own residents who have traveled to another state to get married for the purpose of circumventing a strongly held public policy in their home state.

Here Rosen is drawing on the work of law professor Andrew Koppelman. Professor Koppelman has been writing about this comparison at least since the Hawaii Supreme Court almost kicked off the same explosion in the mid-'90s. Rosen quotes from the professor's book, The Gay Rights Question in Contemporary American Law, to bolster his assertion that "well-developed judicial precedents, dating back to the anti-miscegenation era, will guide courts in their effort to carve out a moderate path." However, in a 1997 article for Quinnipiac Law Review (reprinted, in part, in Andrew Sullivan's Same-Sex Marriage: Pro and Con), Koppelman highlights a case that cuts against the promised precedent:

The earliest case involving an attempt to evade a prohibition on interracial marriage, Medway v. Needham, arose in Massachusetts in 1819. A mulatto man and a white woman, both domiciled in Massachusetts, had gone to Rhode Island, where interracial marriage was legal, in order to evade their home state's prohibition of their marriage. The [Massachusetts] court upheld the marriage, emphasizing, as modern authorities do, the importance of certainty and uniformity with respect to the existence of a marriage. A contrary rule would involve "extreme inconvenience and cruelty"; the rule it adopted "must be founded on principles of policy, with a view to prevent the disastrous consequences to the issue of such marriages, as well as to avoid the public mischief, which would result from the loose state, in which people so situated would live."

Koppelman goes on to note that the court expressed the necessity of limits — having to do with matters that would (in the court's words) "tend to outrage principles and feelings of all civilized nations" — and to explain that the case "was criticized by others, was never followed in any miscegenation case, and was later overruled by statute." But that's not the end of the story. In the brow-furrowing way of these debates, a name familiar to anybody who read the above-linked Globe article about town clerks pops up again. Mary Bonauto, legal director of Gay and Lesbian Advocates and Defenders, has had her eye on Medway at least since the Hawaii episode:

In Massachusetts, our legal precedents, traditions and history do not support discrimination against marriages that are valid where licensed and certified. As a choice of law matter, states now typically recognize each other's marriages if the marriages are valid where contracted. This is often true even when the specific type of marriage at issue is forbidden in the home state. For example, in Massachusetts, the "validation rule" has operated to validate out-of-state marriages which would have been invalid marriages if licensed in Massachusetts, including those between: couples of different races (Medway v. Needham, 16 Mass. 157 (1819)); marriages between closely related people (Sutton v. Warren, 10 Metcalf 451 (1845)); under-aged couples (Levy v. Downing, 157 Mass. 73 (1892)), Commonwealth v. Graham, 157 Mass. 73 (1892)); various couples who remarried during the "nisi" period following a divorce (Vital v. Vital, 319 Mass. 185 (1946)); and common law marriages (Boltz v. Boltz, 325 Mass. 726 (1950)). Taken together, these cases confirm that marriage is a unique and important status which states are loath to undo once certified.

It's relevant to note that the Medway court actually mentioned incestuous marriages as outside of the acceptable bounds of its ruling, a restriction that seems to have been loosened just 26 years later. Surely Bonauto isn't the only homosexual activist with this shaft in her quiver. Moreover, the case hasn't just popped up in the context of importing marriages to Massachusetts. Again with reference to Hawaii, in 1996, Nebraska Attorney General Don Stenberg responded to a query from Senator Jim Jones citing a Nebraska case that, itself, cited Medway v. Needham to validate a law-evading out-of-state marriage.

What will happen when same-sex marriages — procured licitly or otherwise — are thrown to the judgment of courts is difficult to say. It can be said, however, that Bonauto and Rosen both are in a position of relying on one old law to be heeded while another isn't. Compound this across the various state governments of the union, with activist judges and civil servants thrown into the mix, and it isn't exaggerating things in the least for those who wish this mammoth cultural decision to be made by the people to stifle their yawns and get to work.

(Links regarding Mass. town clerks via Marriage Debate blog.)

Posted by Justin Katz at May 5, 2004 12:31 AM
Marriage & Family