1913 statute revives bias
David J. Rushford is probably on the right side of history, if not on the right side of Massachusetts law. Rushford is the city clerk of Worcester. He says he has no plans to ask whether gay couples seeking marriage licenses plan to become Massachusetts residents, a question he says is not asked of straight couples seeking to tie the knot. Rushford says clerks should not be asked to function as "the marriage police."
At issue is an odious law dating to 1913 that states couples whose marriages would be invalid in their home states are not eligible to receive marriage licenses in Massachusetts.
After decades of irrelevance, the law has resurfaced as gay couples from other states ponder whether to come to Massachusetts to marry.
The law was meant to block interracial marriages, then illegal in many states. It's been meaningless since 1967, when the US Supreme Court ruled that banning such marriages is unconstitutional.
Relying on this law to keep out-of-state gay couples from marrying in Massachusetts is a violation of the spirit of the Supreme Judicial Court ruling, which clearly calls for gay couples and straight couples to be treated the same.
Chief Justice Margaret H. Marshall could hardly have been more emphatic on that point. It's the whole point of the ruling.
City and town clerks, who have been anxiously asking for guidance on issuing licenses to gay couples, are plainly confused, and adding this issue to the mix doesn't help. Rushford maintained in Saturday's Globe that challenging couples has never been part of his job description.
On the other hand, the president of the Massachusetts Town Clerks Association stated that the law is the law, and that Rushford spoke only for himself. For his part, Attorney General Thomas F. Reilly insists that it applies, at least to couples from the 38 states that have passed laws banning gay marriage, and possibly those from other states as well, there being no other states that recognize gay marriage.
But the big question isn't whether Rushford is within his rights to refuse to screen gay couples seeking licenses. It's why this law still exists.
Traditionally, lawmakers have been reluctant to take on antiquated laws, feeling that their time could be better spent on contemporary business. Also, some seldom-enforced laws, like those banning adultery, still have political constituencies -- mainly religious groups concerned about the "message" that would be sent by wiping them off the books. Those groups have successfully fought repeal efforts.
This law, however, is different. First of all, it has come back from obscurity to serve a purpose that was almost certainly never considered 91 years ago. All of a sudden, it matters.
But the larger problem is that its reason for existing has always been fundamentally immoral. Even the most ardent gay-marriage opponents, at least most of them, don't believe in the original intent of this law.
This is a law that probably would have been wiped away a long time ago had anyone had any inkling that it might someday enjoy a second life. After all, interracial marriage hasn't been a burning issue in Massachusetts in a long, long time. It's hypocritical to invoke it now, out of sheer convenience, in the service of a completely different cause.
Then again, is it a completely different cause? That musty old law is about legalizing discriminatory treatment. Many people, including a majority of the SJC, would say that today's gay-marriage opponents seek to do the same thing.
While I can't say I wish them well, opponents of gay marriage will have their chances to prevail, via constitutional amendment. Surely, that's a more legitimate way to pursue their cause than dusting off a relic of racism, conveniently retrofitted to serve present-day discrimination.
Adrian Walker is a Globe columnist. He can be reached at walker@globe.com.
