History suggests race was the basis

What was state Senator Harry Ney Stearns thinking?

On March 7, 1913, the 38-year-old, Harvard-educated lawyer from Cambridge persuaded his Senate colleagues -- future president Calvin Coolidge among them -- to approve Senate Bill 234. Simply put, the measure barred out-of-state residents from getting married in Massachusetts if their union would be illegal in their home state. Democratic Governor Eugene N. Foss signed the bill into law three weeks later.

Some legal analysts believe that Stearns's intention may have been to prevent out-of-state interracial couples from marrying in Massachusetts to avoid their home state's ban. At the time, 29 states prohibited interracial marriage, but Massachusetts had scrapped its antimiscegenation law in 1843.

Ninety-one years after Senate Bill 234 became law -- and decades after it was last enforced -- the law is at the center of the controversy over gay marriage. Governor Mitt Romney is using it to bar out-of-state same-sex couples from marrying here, leading critics to accuse him of reviving a vestige of the nation's racist past for his own purposes.

The law was first proposed in 1912 by the National Conference of Commissioners on Uniform State Laws, a body of judges, professors, scholars, and lawyers who wanted to create roughly equal statutes from state to state. "Marriage between a white and a negro" was one of the examples of state-specific prohibitions the group mentioned -- but it was not the only one. It also cited marriages with a minor without parental consent, and marriages within a specified time after entry of final decree in divorce.

Because no record of the 1913 Massachusetts Senate debate has surfaced, nobody knows for sure what Stearns had in mind when he sponsored the legislation.

"It was an era of discrimination, on race and other grounds, that we would not permit today," said Mary Bonauto, a lawyer with the Gay & Lesbian Advocates & Defenders. "It's a 91-year law, and it hasn't been used for 30 years and there's a reason for that. There are laws that have fallen into disuse because they don't make any sense."

Bonauto acknowledges that it's not certain that Stearns, a Republican, was targeting interracial marriage when he pushed his proposal. She noted that the issue of "migratory divorce," or spouses crossing state lines to get divorces that would not be granted in their own states, was a hot topic at the time, and may have factored into Stearns's thinking. "It's possible they adopted it for a whole variety of reasons," she said.

One thing is certain: The proposal flew through the Legislature, reaching the governor's desk just weeks after being introduced. "It moved like you've never seen a piece of legislation move today -- even when [House Speaker] Tommy Finneran is having a good day," Bonauto quipped.

Still, the racial tenor of the times strongly suggests that Stearns, and the Legislature, had race in mind. Randall Kennedy, a professor at Harvard Law School, noted that the Legislature approved the law at the height of the scandal over black heavyweight boxer Jack Johnson's marriage to Lucille Cameron, an 18-year-old white prostitute. Eugenicists, whose theories were widely accepted, were touting the superiority of the white race.

"There's good reason to think that it had something to do with the Jack Johnson affair," Kennedy said.