An obsolete marriage law
DAN WINSLOW, chief legal counsel to Governor Romney, has brought a modicum of sanity, but not enough clarity, to the question of how city and town clerks must enforce a 1913 law that would bar out-of-state gay couples from getting married in Massachusetts. Winslow appears to understand that selectively enforcing the obscure law only against same-sex couples is a discrimination suit waiting to happen. By far the best resolution would be to repeal the law altogether and concentrate on helping gay marriages procede smoothly when they become legal on May 17.
Romney has been brandishing the 1913 statute -- which requires that marriages performed in Massachusetts to out-of-state couples be legal in their home states -- to discourage an imagined deluge of gay applicants after May 17. But for decades the law has been rarely, if ever, enforced. Some states, for example, do not allow first cousins to marry, and others have higher minimium age requirements. Yet town clerks virtually never take it upon themselves to investigate whether couples are cousins or demand proof of age. They should not now be required to examine utility bills or mortgage statements to satisfy themselves that same-sex couples are from Massachusetts.
Faced with a growing mutiny of city and town officials, including Boston's Mayor Thomas Menino, Winslow clarified at a training session in Barnstable on Tuesday that the marriage application itself is sufficient for clerks to be satisfied that couples are not violating the 1913 law. And he made allowances for couples with second homes in Massachusetts and for out-of-state couples who intend to live in Massachusetts in the future.
But the clerks are still in a difficult position. The new notice-of-intention forms provided by the state reprint the 1913 statute on the back and require the clerks to affirm that "no legal impediments" exist to the marriage.
The answer to that can be murky. What of New York, for example, where Attorney General Eliot Spitzer has said his state would recognize gay marriages performed elsewhere even though they are not explicitly legal in New York? Is that a "legal impediment" or not?
At its essence, the 1913 law is discriminatory. It was written to prevent mixed-race couples, and even divorced individuals, from obtaining marriage licenses in Massachusetts. It is a remnant from a different era when such discrimination was widely practiced. Now that the Supreme Judicial Court has declared discrimination against gay couples who want to marry unconstitutional, it is hard to see the point of enforcing the discriminatory laws of other states. Massachusetts should be proud of leading the nation in recognizing same-sex marriages, not clinging to moribund statutes to place obstacles in their way.
