Will the State of Massachusetts Ever Permit Same-Sex Out-of-Staters to Marry?
A New Decision From the State's Highest Court Leaves Open The Possibility

Almost two years ago, in May 2004, same-sex marriage became legal in Massachusetts -- pursuant to a ruling of the state's highest court, the Massachusetts Supreme Judicial Court (SJC) in Goodridge v. Department of Public Health. At the time, opponents warned of a domino effect that would lead to same-sex marriage nationwide.

So far, however, no other state has legalized same-sex marriage. In addition, Massachusetts has robustly fought off same-sex couples who are not Massachusetts residents -- using the "marriage evasion" law enacted by its legislature in 1913.

But now there has been a challenge to the law - and a second decision by the SJC on same-sex marriage that leaves the door open for residents of a small handful of states to possibly marry in Massachusetts.

The "Marriage Evasion" Law and Its Strict Enforcement

When same-sex marriage became legal in Massachusetts, the state's Governor, Mitt Romney, promised that the state would not become "the Las Vegas of same-sex marriage" -- invoking the country's hard-fought battle over quickie divorce.

To a significant degree, he kept his promise, due to the marriage evasion law.

This law prevents non-residents from marrying in Massachusetts if the marriage they seek to celebrate would be prohibited by their home state. Governor Romney ordered town clerks to strictly enforce the law - and, for the most part, they seem to have done so. More than seven thousand same-sex marriages have taken place in Massachusetts -- yet there have only been scattered reports of non-residents successfully marrying there.

Immediately after the celebration of same-sex marriages began, a lawsuit, Cote-Whitacre v. Department of Public Health, was filed challenging enforcement of the marriage evasion law. Two sets of plaintiffs - eight same-sex couples from a variety of neighboring states seeking to marry in Massachusetts, and thirteen municipal clerks objecting to their role in enforcing the law - joined in the suit.

Their first move was to seek a preliminary injunction blocking enforcement of the marriage evasion law. (A preliminary injunction typically extends until the suit can be resolved. It reflects initial determinations that the plaintiffs will likely win the suit, and that the defendant should immediately be ordered to stop conduct that will probably ultimately be deemed illegal.)

Now, as noted above, the preliminary injunction request has prompted a decision from the SJC.

Different Results for Plaintiffs From Different States

In an uncharacteristically short opinion, the SJC unanimously ruled against the plaintiffs. The majority of justices concluded that, under the marriage evasion law, plaintiffs from four of the six states represented in the lawsuit - Connecticut, Maine, New Hampshire, and Vermont -- are barred from marrying in Massachusetts, because same-sex marriage is clearly prohibited in those states. The court thus directed a judgment for the defendants as to those plaintiffs.

But the court gave plaintiff-couples from Rhode Island and New York another bite at the apple -- since there is no express ban on same-sex marriage in either state. The SJC thus ordered that, as to those plaintiffs, the case should be remanded to the lower court for a determination whether, in each state, same-sex marriage is "prohibited" within the meaning of the marriage evasion law.

The upshot of the decision, then, is that the validity of the archaic marriage evasion law is not in question - but its precise application has yet to be determined.

The Justices' Different Views: The Majority Opinion, Concurrences, and Dissent

Three separate concurrences and one dissent explained the justices' differing views of the case.

The plaintiffs' core claim was that the marriage evasion law, regardless of how interpreted, is unconstitutional - because it unfairly discriminates against non-residents and because of the sudden and allegedly selective enforcement of a "moribund" law, against homosexuals.

While several of the justices thought the law was unwise, only the dissenting judge believed it violated the constitution. The concurring opinions believed the law could survive the applicable standard of review - which asks only that the law - which does not, on its face, discriminate against a protected class of persons - must have a "rational basis."

Plaintiffs also made a stronger claim, based on statutory interpretation: They claimed that the law only applies to residents of states in which the law declares same-sex marriage "void," as opposed to laws that simply prohibit it.

Under one section of the law -- G.L. c. 207 § 11 -- a non-resident may not marry in Massachusetts "if such marriage would be void" in the individual's home state. But in the very next section -- G. L. c. 207 § 12 - the law provides that municipal clerks shall not issue a marriage license to anyone unless that person "is not prohibited" from marrying in his home state.

Plaintiffs weren't just playing semantics: in marriage law, historically, the terms "void" and "prohibited" have had different meanings - and remember, this law dates from 1913.

A given state, as a general matter, honored out-of-state marriages that were valid where celebrated, even if they were clearly prohibited within that state. So suppose a particular state itself prohibited minors from marrying there without parental consent. It might still give effect to an underage marriage celebrated in a neighboring state that permitted such marriages - for the underage marriage would be valid where celebrated.

One exception to this rule, however, was for marriages the state had declared not just impermissible, but "void" -- typically because they were particularly odious to the state's public policy. These marriages would be denied legal effect even if they were valid where celebrated.

For instance, a given state might have a law declaring incestuous marriages "void" - meaning it would refuse to give effect to such a marriage even though another state or foreign country might have authorized it, and the marriage therefore was valid where celebrated.

The first concurring opinion, authored by Justice Spina, seems to conclude that the legislature's intent, in 1913, was to permit non-residents to marry only if their home states would actually permit them to marry -- since the provision that actually tells clerks what to do uses the phrase "not prohibited," rather than "not void." In the same-sex marriage context, this is a much more difficult standard for plaintiffs to meet.

In other concurring opinions, however, three justices seemed uncomfortable with this strict standard. Justice Marshall, the author of the opinion in Goodridge, and Justice Greaney each wrote to counsel for a less stringent interpretation of the evasion law though, frankly, the line they would draw is not entirely clear. Justice Marshall did note that Justice Spina's approach, which had been urged by the state's Attorney General, would mean that Massachusetts could not permit any non-resident to marry if his home state would prohibit it - a stringent approach that it (and other states) has never taken.

The National Landscape: Most States Expressly Prohibit Same-Sex Marriage

The rule, according to the SJC, is thus that non-residents can only be married in Massachusetts if the marriage would not be prohibited in their home states.

But that raises a new question: There's a significant difference between expressly permitting same-sex marriage (as only Massachusetts has done) and expressly prohibiting it (which many other states have done). According to the ruling in Cote-Whitacre, a constitutional provision, statute, or controlling appellate opinion can count as the necessary express prohibition.

While ten years ago same-sex marriage was hardly mentioned in state codes or constitutions, they are now replete with provisions banning same-sex marriage. As of the end of 2005, eighteen states had enacted anti-same-sex marriage amendments to their constitutions. And more than forty states (including some overlapping ones) enacted statutes expressly banning same-sex marriage.

But that leaves five states, other than Massachusetts, without such a constitutional or statutory ban: New Jersey, New Mexico, New York, Rhode Island, and Wisconsin. (Connecticut does not expressly ban same-sex marriage, but does define marriage as a union between a man and a woman.)

The list narrows further, however, because of "controlling appellate opinions," which, arguably, New Jersey and Wisconsin courts have issued. (I have written about the New Jersey litigation in an earlier column.)

That leaves New Mexico, New York, and Rhode Island - as well as the District of Columbia - as the only jurisdictions without express prohibitions on same-sex marriage. Granted, the Attorneys General of New Mexico and New York have issued advisory opinions interpreting their respective state laws to preclude same-sex marriage, but that does not seem sufficient to count as an express prohibition under the standard set forth in Cote-Whitacre; after all, only courts, not Attorney General's Offices can issue opinions on this issue that have legal effect. (Rhode Island's Attorney General was once invited, but declined, to opine on the status of same-sex marriage in his state.)

Even in New Mexico, New York and Rhode Island and D.C., the Standard Set out in Cote-Whitacre Will Be Hard to Meet

Does this mean residents of New Mexico, New York, Rhode Island, and D.C. can now go enter into same-sex Massachusetts marriages? They might be prudent to wait, at least, for the lower-court decision - for while the SJC's ruling does create an opportunity for residents of those states to make a claim to the right to marry in Massachusetts, it does not guarantee their success.

And in the end, the likelihood that they will succeed is fairly small. When faced with the question of whether state marriage laws that make no mention of same-sex marriage in fact permit it, courts have uniformly held that they do not.

In Vermont, for example, the state Supreme Court ruled in Baker v. State that the existing marriage law, though seemingly gender-neutral, did not, in fact, permit same-sex couples to wed. The Court invalidated the law under the state's constitution and ordered the legislature to conform its statutes to the ruling. The legislature reacted by creating the civil unions -- which, at the time, was the first legal status to come with rights and obligations identical to those that accompany marriage.

Five years later, the Massachusetts high court issued a similar ruling in Goodridge in which it first held the state's gender neutral marriage code to implicitly prohibit same-sex marriage, but then proceeded to declare that implicit ban invalid under the state's constitution.

Courts in other states, such as New Jersey, have made similar findings on the scope of existing law, but declined to invalidate the implicit ban on same-sex marriage. But regardless of how courts rule on the constitutional question, all or almost all agree that even without express language to the contrary, traditional state marriage laws do not permit same-sex couples to marry. This is a reasonable conclusion, given that most of these laws are decades, if not centuries old. They almost all predate the issue of same-sex marriage entirely and, thus, it would be hard to find in them legislative intent to authorize the practice.

In New York, the question of what existing law provides may turn on who answers it first. The plaintiffs in Cote-Whitacre will be pursuing this claim before a Massachusetts court on remand. There, the question will be what Massachusetts thinks New York law provides. At the same time, there is a case pending before the New York Court of Appeals - the state's highest court - in which the plaintiffs are seeking a Goodridge-style outcome. In that case, Hernandez v. Robles, the question is what New York thinks its own law provides and whether, if it forbids same-sex marriage, it is constitutional. If the New York court rules first, Massachusetts will undoubtedly defer to that opinion.

Massachusetts' Proper Role Isn't to "Contain" Its Same-Sex Marriages

While the SJC warded off same-sex couples from most states with this ruling, it did leave the door ajar.

Though this ruling may mean that couples from a handful of states are able eventually to marry in Massachusetts, the state's general approach to dealing with non-resident couples will still be wrongheaded. In response to the ruling in Cote-Whitacre, Governor Romney told the New York Times: "This is an important victory for traditional marriage and for the right of each state to be sovereign as it defines marriage. It's very important to contain a bad initial decision on same-sex marriage by this court and not impose it on the other 49 states."

The manifest truth is that states retain the power to refuse recognition to out-of-state marriages that violate their own laws or strong public policies, and most have formally exercised this power through their enactment of anti-same-sex-marriage statutes and constitutional amendments. But even those that have not could refuse (or grant) recognition on a case-by-case basis.

It is not Massachusetts' responsibility to protect other states from its ruling - states can do that for themselves, if they see fit. What Massachusetts should be doing, instead, is urging other states to give its marriages the respect they deserve.