FW: Mass. marriage law and PI clause

Bryan Wildenthal bryanw at tjsl.edu
Sun May 23 18:23:11 PDT 2004

I am a bit surprised that there has not been a single response to the April 8 posting of mine copied below. The 1913 Mass. state law referred to has gotten considerably increased media attention in recent weeks, as Gov. Mitt Romney threatens to use it to block or invalidate same-sex marriages of non-Mass. couples, since the legalization of same-sex marriage in Mass. on May 17.

Supplementing my thoughts laid out below, I would note that one might raise an issue whether the right to marry (for out of state visitors, and perhaps specifically for out of state gay couples) is "fundamental" for purposes of the Article PI Clause. "Marriage" generally has of course been deemed a "fundamental" right, and the Mass. SJC has of course extended that reasoning to same-sex marriages. It thus seems almost certain that the Mass. SJC will strike down this Mass. law under the Mass. Constitution. But I still think it also should be found to violate the federal Art IV PI Clause as well.

Anyone agree, or disagree?

Bryan Wildenthal
Thomas Jefferson School of Law

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Bryan Wildenthal
Sent: Thursday, April 08, 2004 3:28 PM
To: conlawprof at lists.ucla.edu
Subject: FW: Mass. marriage law and PI clause

It seems to me the "obscure Massachusetts law" described in the article
below (assuming the Massachusetts Supreme Judicial Court does not strike it
down, as they did the Mass. ban on same-sex marriage generally), plainly
violates the Privileges and Immunities Clauses of Article IV and the
Fourteenth Amendment (and the state citizenship clause of the 14th
Amendment) of the U.S. Constitution, which provide that citizens of any
U.S. state visiting or moving to another state are entitled to the same
basic rights of citizens of the state they are visiting (or permanently
relocating to).  Since Mass. citizens and residents, after May 17 of this
year, will have the right to enter into same-sex marriages, I think
Massachusetts must extend that right to out-of-state visitors and migrants
(unless pursuant to an evenhanded waiting period for same-sex and
opposite-sex alike, as noted below).

A state, of course, need not allow temporary out-of-state visitors to get married at
all under local law (states can impose up to a one-year residency
requirement under Sosna v. Iowa, 1975), though
most states no longer require such long waiting periods.  But if a state
generally chooses to allow out-of-state visitors to get married, as Mass.
does, I don't think they can deny that right to certain visitors simply
because they come from some other state. Why should Mass. care what the other state's law says?
Any "Full Faith and Credit" issue wuold be for the other state to deal with, when the couple goes home -- which they might well choose not to do, or may move elsewhere, if that state refuses to recognize the Mass. marriage.

Under this Mass. law, apparently, back when interracial marriages were illegal in
some states (pre-1967), an interracial couple who resided permanently in a
state banning interracial marriage (say, South Carolina), would not have
been able to get married in Massachusetts, even though (I believe)
Massachusetts has not itself banned such interracial marriages since the
Civil War era. That seems perverse. I am not aware, however, of any
relevant legal challenges during the pre-1967 era.

This is all, of course, as noted, a different issue from the "Full Faith and Credit" issue whether
a state refusing to recognize certain marriages domestically would recognize them if performed in another state.

Am I missing something?

Bryan Wildenthal
Thomas Jefferson School of Law

30 March 2004

   1913 law limits gay marriages

   BOSTON -- Same-sex couples living in states where laws ban gay
   marriage will not be able to marry in Massachusetts, the state's
   attorney general said Tuesday.

   Although a court has ordered that gay and lesbian couples can begin
   marrying in Massachusetts on May 17, Attorney General Thomas Reilly
   said an obscure 1913 state law prevents the state from issuing
   marriage licenses to couples who are not eligible to be married in
   their home states.

   "I think there's at least 38 states which do not recognize same-sex
   marriage," Reilly said, referring to the 38 states with laws defining
   marriage as a heterosexual institution.

   He said Massachusetts should give a list of those states to town
   clerks so that they can refuse marriage licenses to people residing

   Reilly's interpretation of the law could thwart the plans of couples
   around the country who had been planning to get married in
   Massachusetts once such unions became legal.

   Mary Bonauto, a lawyer for Gay and Lesbian Advocates and Defenders,
   the group that won the Massachusetts case legalizing gay marriage,
   said that she believed that residents from some of the 38 states might
   be eligible because only those states whose laws declared same-sex
   marriages void would directly contradict the Massachusetts statute.....

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