Same-Sex Couples Prepare to Marry in Massachusetts,
But the Governor Invokes An Archaic Marriage Evasion Act To Stop Out-of-Staters From Taking Vows

Yesterday, May 17, for the first time, same-sex couples legally wed in Massachusetts. Hundreds more will do so as the week progresses.

This is a watershed moment in history, and yet it is far from the end of the story. Legal challenges suggesting other states need not recognize these Massachusetts marriages have yet to be resolved. Advocacy to amend the constitution to prohibit such marriages will doubtless continue, and President Bush today reiterated what he calls an "urgent" need for such an amendment.

In addition -- as I will explain -- Massachusetts' governor has invoked an old state law that he claims means out-of-staters cannot enter into same-sex marriages in Massachusetts. But whether this law will prevent out-of-state couples from marrying in Massachusetts, or, perhaps more importantly, invalidate their marriages if they do, remains to be seen.

In November, the Supreme Judicial Court (SJC) of Massachusetts decided Goodridge v. Department of Public Health. There, it declared the state's ban on same-sex marriage unconstitutional and gave the legislature 180 days to amend its statutes appropriately.

Subsequently, the state Senate solicited an advisory opinion from the Court. It asked if its "separate but equal" civil union bill -- under which same-sex couples would have been entitled to enter into civil unions that would differ from marriage in name only -- would satisfy the Massachusetts constitution.

But the Court, in its Answer, said no. It made clear that only full-fledged marriage would meet the state constitution's mandate of equality for all citizens

The state legislature then drafted and passed an amendment to the state's constitution banning same-sex marriages. But under the constitution, that amendment cannot take effect before November 2006. And that meant that between May 17, 2004, and November 2006, gay marriage would be legal in Massachusetts.

Why did plaintiffs see a federal constitutional violation here? Because, they argued, the U.S. Constitution guarantees a republican form of government, and that guarantee was violated when the court redefined marriage to include same-sex couples, despite the state legislature's more limited definition.

The federal court, however, refused to grant the injunction. It found a strong likelihood that the SJC -- not the plaintiffs -- would win the suit. In the court's view, Massachusetts' Constitution clearly endows the judicial branch with the authority to decide cases involving marriage and divorce and, if necessary in the course of doing so, to reinterpret the term marriage.

The U.S. Supreme Court declined to review this decision. Appeal to the U.S. Court of Appeals for the First Circuit is still pending.

Meanwhile, about a month ago, Massachusetts Governor Mitt Romney announced plans to enforce provisions of a little-known 1913 state law that could have the effect of limiting same-sex marriage to Massachusetts residents only. If Romney is correct, out-of-staters need not apply, and can be turned away.

These provisions are patterned after the Uniform Marriage Evasion Act (UMEA), enacted in the early twentieth century. (Uniform laws, in general, are drafted by an independent body called the National Conference of Commissioners on Uniform State Laws (NCCUSL). A uniform act has no independent force and effect until it is adopted by a state's legislature, at which time it becomes part of that state's code.)

The idea behind the UMEA was to permit states to insist on strict marriage restrictions, without being undermined by more lenient sister states. UMEA itself no longer exists, though thirteen states and the District of Columbia retain some version of it in their codes. NCCUSL withdrew support for the Act in the Uniform Marriage and Divorce Act (UMDA).

Section 210 of the UMDA follows a strict version of the place-of-celebration rule, a common law principle that marriages should be valid everywhere as long as they were valid where celebrated. That standard gives states the opportunity to set their own standards for marriage, while ensuring that those who do marry obtain a meaningful, portable status.

But Massachusetts law never adopted the more modern UMDA. It retains the provisions from the original UMEA. And that Act says, in pertinent part, that a state shall not license marriages by non-residents if the marriage would be void if contracted in their home state. And to enforce this rule, it requires officials issuing licenses to obtain proof that a non-resident applicant would also have been permitted in his own state.

As long as no state except Massachusetts allows gay marriage, these provisions seem to imply out-of-staters are out of luck: They cannot marry in Massachusetts (unless, of course, these provisions are struck down as violating the state or federal constitution.)

Governor Romney also sent a letter to the governor and attorney general in each state, asking that they inform him if same-sex marriage is not prohibited in their states. Otherwise, the letter explained, he will assume such marriages are not allowed, and residents of those states will not be permitted to marry in Massachusetts either.

Most states ignored the letter -- no doubt in part because more than forty of them have explicit statutes on the books either banning same-sex marriage, or stating that a same-sex marriage from another state will not be recognized. But the Attorney General of New York, Eliot Spitzer, offered an interesting response.

Spitzer enclosed, with a polite cover letter, a March 2004 legal opinion he had issued. There, he concluded that New York statutes, as currently written, do not permit same-sex couples to marry. But he also alluded to the possibility that a court might well find that the statutory scheme was unconstitutional, on grounds similar to those used in Massachusetts. In addition, Spitzer concluded that same-sex marriages should be given full force and effect in New York so long as they were valid in the state where they were performed. (Late yesterday, Rhode Island's Attorney General issued a very similar opinion, while Connecticut's declined to answer the recognition question.)

So can New York same-sex couples marry in Massachusetts, and have their marriages recognized back in New York? It's a conundrum. Assuming Spitzer's view of what New York courts will say is correct, then the law in New York is that such marriages will be recognized if valid in Massachusetts. Yet Massachusetts' Marriage Evasion laws say they will only be recognized if they are permitted in New York.

This creates a chicken/egg problem. Or, to use another metaphor, both states have punted. So New York same-sex couples may want to try their luck in Massachusetts -- but unfortunately, there's no guarantee they won't be turned away.

Worse still, couples may be allowed to marry, but return home to find their certificate useless when they try to claim important rights relating to insurance, taxes, adoption, inheritance, and so on.

Out-of-state same-sex couples who entered into Vermont Civil Unions have faced just this type of difficulty when they have returned to their home states. Indeed, as I discussed in another column, some have not been even able to divorce without returning to -- and, for a time, residing in -- Vermont.

New York has one case recognizing a Vermont Civil Union for purposes of a wrongful death suit. But even if that opinion withstands appeal, it may not apply equally to Massachusetts' marriages. After all, a New York couple who successfully marry in Massachusetts, despite being non-residents, run the risk that a court will rule the marriage was not "validly performed" where celebrated. With such a ruling, the basis for granting sister-state recognition would disappear.

Massachusetts law needs an update. It is ironic, at best, and tragic, at worst, for the state to be at the forefront of a movement on the one hand, and yet also to be constrained by such an archaic law. The modern, sensible Uniform Marriage and Divorce Act, not the outmoded Uniform Marriage Evasion Act, ought to be reflected in Massachusetts law.

The practical complications of non-uniform marriage laws are real. Yet there are many ways to solve them. One is having a federal constitutional amendment defining marriage. But a better one is to return to the straightforward place-of-celebration rule, which means that states must give effect to any legal relationship valid where celebrated.

Same-sex marriage is a legal area where the states can have it all: individuality (the right to grant greater rights than other states), comity (respect for each other's laws), and equality, too.