MASS. MARRIAGE RESIDENCY LAW: Gabriel Rosenberg

So there are a lot of questions lately about a Massachusetts law dating from 1913 that reads:

"No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void."

One question is whether said law is constitutional, but another question is what does it mean even if it is. Gov. Romney believes that it means that Massachusetts may not marry non-resident same-sex couples from any other state, and any such marriages performed are null and void under Massachusetts law. He believes this follows since, to his knowledge, same-sex marriage is not legal in any other state of the union. He even sent out letters to the govenors and attorneys general of the other states asking them to inform him if his assumption about their laws was incorrect. Based on this reading, Gov. Romney is asking town clerks to ask for proof of residency and to deny licenses to out-of-state gay couples (except those from Ontario, etc.).

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. ...

And what about the underlying arguments about the law's constitutionality? ...So far I have seen two concerns raised. One is that Massachusetts has no business enforcing the discriminatory laws of other states, and the second is that such a law would unfairly treat non-residents differently than residents in violation of the privileges and immunities clause. My initial reaction, though, is that both concerns are rather weak. The SJC found there was no rational basis for prohibiting SSM under Massachusetts law. That does not mean that another state might not have a rational basis to prohibit it under their own laws. Nor is it the place of the SJC to rule on how other states should interpret their own laws. As for the P&I clause, while it has been applied to limit the ability of states to discriminate against non-residents in matters to applying their trade, or in medical or welfare matters, it has explicitly not applied to areas of domestic relations. It seems to me that the Supreme Court case of Sosna v. Iowa (1975) is quite relevant. That case held that Iowa could require a one-year residency period before a person could seek a divorce.

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posted by Eve at 4:29 PM | Link |

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