Banned in Boston

May 14, 2004

Much as I keep hoping to write about some important other legal issues, such as domestic partnerships and elder law, the Massachusetts marriage equality issue keeps dominating GLBT legal news. To give you an idea of the volatility of this legal issue, this is the third time I have updated this column today, May 14, 2004.

As I write this, we are just seven days away from seeing the first legal same-sex marriages in the United States. On Monday, May 17, barring any last-minute legal impediments, same-sex couples will begin legally applying for marriage licenses at town halls throughout Massachusetts. After a three-day waiting period imposed on all couples in the state, same-sex couples will be saying their vows in front of friends and family as they are joined in wedded bliss, just like any other couple.

Foes of gay and lesbian equality, however, continue attacks that range from petty and mean-spirited to desperate and despicable.

In the petty category, I count the Massachusetts union that has taken advantage of a federal legal loophole and declared that its health plan will not extend benefits to same-sex marriages. Because the insurance plan is governed by federal law, the union can get away with this blatant discrimination without fear of violating Massachusetts's law. Fortunately, there don't appear to be any other groups following this union's lead. However, many companies in Massachusetts that have provided domestic partner benefits are now dropping those benefits for Massachusetts's residents, on the basis that these benefits have been provided only because same-sex couples could not legally wed. Now that marriage is becoming a reality, the companies will treat such couples the same as heterosexual couples, which means that if a company refused such benefits to unmarried straight couples, they will similarly refuse them to unmarried same-sex couples. That's certainly fair.

Also in the petty category is the refusal of the Massachusetts governor's office to grant one-day waivers to allow those who are not licensed to perform marriages in Massachusetts for same-sex couples. These waivers are routinely granted by the governor in order to allow couples in Massachusetts to be married by an out-of-state family member or friend who would otherwise be unable to officiate at the wedding. Because the requests for such waivers take from four to six weeks, many same-sex couples have applied for them already, in anticipation of a May or June wedding. Governor Romney's office has taken the position that, since same-sex marriages are not yet legal, it will not grant such waivers until May 17. This has forced some couples to delay their marriage plans until after they have received the waiver.

In the desperate category are the continuing efforts of various religious organizations to seek a court order barring same-sex marriage pending the outcome of the attempt to amend the Massachusetts Constitution to ban equal marriage rights.

These efforts include an appeal by 13 Massachusetts legislators, Republican and Democrat, who argued to the Massachusetts Supreme Judicial Court that it did not have the necessary jurisdiction to decide marriage laws. The legislators, who were supported by the Christian legal group funded by Pat Robertson, the American Center for Law and Justice (ACLJ), argued that only the Legislature and governor had the power to determine marriage law in Massachusetts. The SJC rightly rejected this challenge on the basis that it was untimely and had already been raised and rejected in the previously decided marriage suit.

Another challenge, brought by the Boston Catholic Archdiocese and argued by former Boston mayor and Vatican ambassador Ray Flynn, was also rejected by the state courts. In addition, a petition to the SJC was filed by the Catholic Action League arguing that the court should delay same-sex marriages pending the outcome of the amendment effort. The Supreme Court Justice hearing the petition, Justice Ireland, who was among the majority deciding in favor of equal marriage rights, rejected the petition on the basis that the petitioners did not have legal standing, meaning they did not represent anyone affected by the law. He also warned these and other groups that, even if they had standing, he would have rejected the petition on other grounds.

The latest court challenge was one brought in federal court by the Catholic Action League, which is represented by Liberty Counsel, a Christian legal group funded by Jerry Falwell. The League claims that the Massachusetts courts violated the U.S. Constitution by usurping the Legislature's authority to change marriage laws. On May 13, the court rejected the suit, and the Catholic Action League appealed to the First Federal Court of Appeals. That court refused to issue an injunction, although it agreed to hear arguments on the matter in June. In a last-ditch effort, the CAL appealed to the U.S. Supreme Court, which refused to hear the matter without comment.

In the truly despicable category, however, I rank the efforts of Governor Romney to prevent out-of-state same-sex couples from coming to Massachusetts to marry, as many had planned. The Governor's stance is based on an interpretation of a little-used 1913 law meant to prevent interracial marriage.

This previously unenforced law prevents a Massachusetts clerk from issuing a marriage license to an out-of-state couple if the marriage would be void in the couple's state of residence. Out-of-state couples have generally not been asked for proof of residency, and have only to sign an affidavit that the marriage would not be void in their state.

When Romney's office first raised the law as an impediment to out-of-state couples, the state's Democratic Attorney General issued an opinion that the law prohibited marriage for couples from the 11 states that actually had laws prohibiting same-sex marriage. When clerks in some cities began stating they would not enforce the law against same-sex couples, Romney responded by threatening the clerks with prosecution if they violated the law. He also issued new guidelines and a new affidavit requiring the out-of-state couple to provide proof of residency. Romney also took the position that all other states were presumed to ban same-sex marriage and unless the Governor received a legal opinion from another state's governor or attorney general stating otherwise, Massachusetts's clerks were prohibited from marrying non-resident same-sex couples.

Many clerks in Massachusetts, particularly those in gay-friendly cities such as Provincetown, subsequently declared they would not ask for proof of residency from same-sex couples that signed the affidavit. An attempt to repeal this law failed in the face of the Governor's threat to veto such a repeal. As it stands, therefore, it is unclear whether a Massachusetts marriage of a same-sex couple would be void. If you're planning such a marriage, don't go to Boston, which has stated that it will not issue licenses to out-of-state same-sex couples.

There are some bright spots, though. The Governor quelled an effort by some clerks opposed to same-sex marriage, who had stated that they would not perform such marriages. Romney has told such clerks that if they are unwilling to perform such marriages, they must resign.

In addition, clerks in Provincetown, Worchester, and several other Massachusetts towns have reiterated their position that they will not ask for proof if an out-of-state couple declares in their affidavit that they intend to reside in Massachusetts after the marriage, and will issue marriage licenses to such couples.

On May 20, 2004, when the first same-sex marriages actually take place, the sun will rise, the moon will set, and the tides will ebb and flow. Heterosexuals will wake up, go to work, come home for dinner and go to bed, and just like any other day, their marriages will be no better or worse than on May 19. I predict that by the time the Massachusetts marriage amendment comes to a vote by the people of Massachusetts, much of the opposition will have faded and marriage in Massachusetts will continue to be afforded equally to all couples, regardless of sexual orientation.