SSM AND FEDERALISM: Stanley Kurtz

Defiance of the law is rapidly becoming the leitmotif of the gay-marriage movement. It's not that gay-marriage supporters are generally less law-abiding than others. The root of the problem is that proponents of gay marriage see their cause as parallel to the civil-rights movement of the early 1960s. That analogy is badly flawed. But if you buy it, then it's perfectly alright to disobey the law in order to nationalize gay marriage.

This is why it's foolish to put faith in laws that supposedly prevent gay marriage in Massachusetts from spilling over into other states. When it comes to same-sex marriage, it barely matters how the law is written. Again and again, gay-marriage advocates have shown themselves eager to disobey any law that would prevent the spread of gay marriage from state to state. If you believe this process can be ended by anything short of a federal constitutional amendment, you are dreaming.

It took only a single day of legal gay marriage to reveal the worthlessness of assurances about this experiment's confinement to Massachusetts. Let's review the curious history of Chapter 207: Section 11, the provision of Massachusetts law that supposedly prevents the marriage of out-of-state residents whose marriages would not be legal in their home state.

When the Goodridge decision was handed down last November, Justice Greaney, who was in the majority, issued a concurring opinion containing the following claim:

"The argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other States as a tool to obtain recognition of a marriage in their State that is otherwise unlawful, is precluded by the provision of G.L. c. 207, 11, 12, and 13."

That law states that if your marriage would not be valid in your home state (but would be valid in Massachusetts), you can't get married in Massachusetts without actually moving to Massachusetts. Justice Greaney is clearly assuming that this law is valid, and that it should and will be enforced by state officials.

That was in November of 2003. Three months later, journalist and gay-marriage advocate Andrew Sullivan touted the same law cited by Justice Greaney as proof that "federalism works." According to Sullivan, true conservatives--those who believe in states' rights--can see that there is no need for a Federal Marriage Amendment. The residency law will prevent same-sex marriages contracted in Massachusetts from being exported to other states. ...

A few weeks later, a group of Massachusetts state legislators announced an effort to repeal the residency law. That, at least, was an attempt to work through democratic and legal channels. But one of the reasons given by Representative Robert Spellane for repealing the residency requirement is telling. Spellane claimed that the law ought to go because it is discriminatory--and because it violates the Goodridge decision. So in just four months time, the residency requirement had morphed from something actually relied on in Goodridge to an outrageous piece of discrimination supposedly voided by Goodridge.

Next came the plans for civil disobedience. Why wait for liberal legislators to repeal the residency law when you can simply defy it? Town clerks in Provincetown, Worcester, and several other Massachusetts cities announced that they would issue marriage licenses to out-of-state couples. Then district attorneys in several localities said they would not prosecute clerks who violated the law. Norfolk County District Attorney William R. Keating said that because the original law was enacted in part to enforce prohibitions on interracial marriage, it was now effectively void. Keating made this claim, despite the fact that the original law was not about interracial marriage alone, and despite the fact that Goodridge itself actually relied upon the validity of the residency law.

And on the very first day that gay marriage was legal in Massachusetts, the residency law was in fact violated. In at least four communities, marriage licenses were issued to couples even if they said they had no intention of moving to Massachusetts. The mayor of Sommerville explicitly welcomed out-of-state couples. More than a third of applications in Provincetown were from out-of-state couples. Some made it clear on their applications that they had no intention of moving to Massachusetts. Others admitted later to the New York Times that they'd lied about their intentions. ...

Attorney General Spitzer's position is devious and contradictory. Spitzer acknowledges that same-sex marriages cannot be legally performed in New York. So under the Massachusetts residency law, the marriage of a same-sex couple from New York must be illegal in Massachusetts as well. But Spitzer suggested that Romney should marry same-sex couples from New York in Massachusetts (so that Spitzer can then recognize their marriages in New York). In effect, Spitzer is using Massachusetts marriages to make an end-run around his own state's laws. So with the connivance of New York State's own attorney general, same-sex marriage is in fact being "used as a tool" to obtain recognition of a marriage that would "otherwise be unlawful." (For more on Spitzer's strategy, see my "Courts vs. the People.")

In other words, the very thing that Justice Greaney assured us would not happen is in fact happening.

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posted by Eve at 12:48 AM | Link |

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