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WHO'S IN CHARGE HERE?
Magpie is a former journalist, attempted historian [No, you can't ask how her thesis is going], and full-time corvid of the lesbian persuasion. She keeps herself in birdseed by writing those bad computer manuals that you toss out without bothering to read them. She also blogs too much when she's not on deadline, both here and at Pacific Views.

Magpie roosts in Portland, Oregon, where she annoys her housemates (as well as her cats Medea, Whiskers, and Jane Doe) by attempting to play Irish music on the fiddle and concertina.

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Thursday, March 30, 2006

Still second-class citizens.

Lesbians and gay men who live in Massachusetts may be able to get married, but out-of-state couples are out of luck.

In two related 6-1 decisions, the state's Supreme Judicial Court ruled that same-sex couples from other states cannot marry in Massachusetts unless their home state also allows same-sex marriages.


Not married

Amy Zimmerman [left], her partner Tanya Wexler, and their children.
Zimmerman and Wexler sued Massachusetts for the right to marry, and lost their case today.
[Photo: Chitose Suzuki/AP]


According to the court, Massachusetts laws 'have not endowed nonresidents with an unfettered right to marry.' As a result, wrote Justice Francis Spina in the majority opionion, the fact that the state's high court previously ruled in favor of same-sex marriages 'does not now compel a conclusion that nonresident same-sex couples, who have no intention of living in Massachusetts, have an identical right to secure a marriage license that they could not otherwise obtain in their home states.' So, unless a couple hails from Rhode Island and New York, their Massachusetts marriages are now invalid. And even the validity of marriages from those two states has been kicked back down to lower courts to decide.

In its decision, the high court upheld a rarely used 1913 law originally passed to deal with the 'problem' of mixed-race marriages. Even the majority admitted that, by upholding this law, they were placing a much heavier burden on lesbian and gay couples, rather than heterosexual couples.

Justice Roderick Ireland was the court's only dissenting voice today. He voted to rule the 1913 law unconstitutional, saying it was 'deeply rooted in discriminatory notions of marriage:

[The] resurrection of a moribund statute to deny nonresident same-sex couples access to marriage is not only troubling ... but also fundamentally unfair. This law has not been enforced for almost 100 years, and certainly never with the vitriol on display.

Via NY Times and AP.

More: I've found the text of the decision [available here as a PDF], and here's the full context of the dissenting commments by Justice Ireland:

Moreover, the Commonwealth's resurrection of a moribund statute to deny nonresident same-sex couples access to marriage is not only troubling and, as the Superior Court judge stated, offends the "spirit" of Goodridge [the earlier decision allowing same-sex marriages], but also is fundamentally unfair. This law has not been enforced for almost one hundred years, and certainly never with the vitriol currently on display. To use a law that has not been used for over one hundred years to deny same-sex couples access to marriage contravenes the public policy of this State to protect all persons, including homosexuals. We have seen this before, and we declared "history must yield to a more fully developed understanding of the invidious quality of the discrimination" before us.

Ireland's dissent begins at page 23 of the ruling. It's worth wading through the legal stuff to see how Justice Ireland lays out the political reasons that are really behind barring non-resident couples from marrying. We were especially interested in his comparison of the current court's decision with the high court's 1836 ruling that a slave brought to Massachusetts becomes free even if the laws of their home state barred that freedom.

| | Posted by Magpie at 2:36 PM | Get permalink




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