Since my last post on the 1913 law preventing out of state marriages, the issue has been more fiercely debated, as Gov. Romney has announced that he intends to use the law to instruct clerks not to issue any out of state residents gay marriage licenses, under the theory that since no other state yet recognizes gay marriage, they aren’t technically legal here either.
“Because of current Massachusetts law, out-of-state couples are prohibited from marrying in Massachusetts if they cannot legally marry in their home state,” [spokesman] Fehrnstrom said. “The governor feels an obligation to carry out the law as it exists.”
…”The governor does not have the luxury of choosing which laws to enforce and which ones to ignore.”
Now, I’ve outlined why I think this in-state only rule is actually good for the longterm prospects of gay marriage in the Commonwealth, and I still think so. But a couple of things to note. First, if Romney wants to invoke a law designed to stop interracial marriages, let him. The anti-gay-marriage groups have spent a lot of time and effort trying to convince the public that bans on gay marriage are not analogous to the bans on interracial marriage that used to dot the country. Romney is now making the analogy rather explicit.
Second, Romney is clearly posturing (and downright wrong) when he says that he doesn’t have a choice which laws to enforce. Actually, he exercises that discretion all the time. Romney is a Fraud catalogs some of the ones he’s chosen to ignore. And today’s Globe points out that marriage clerks have been specifically instructed for the last 27 years to ignore the eligibility requirements. People know there are a lot of silly, antiquated laws on the book and will see right through this argument.
Finally, I’m no legal expert here, but doesn’t Romney get the law wrong? To my understanding, it’s a prohibition of marriages that would be prohibited under another state’s law, not a prohibition of marriages of the kind not performed by other states. The distinction is not pedantic. Under the former, only residents from states having DoMA legislation on the books would be excluded, whereas the latter would exclude residents from states which do not perform same-sex marriages (i.e. all of them). As one Boston College law professor quoted in the Globe article notes, “I don’t think it is appropriate for clerks and justices of the peace to make that determination. The laws in other states are in flux, and one shouldn’t be quite so quick to say that same-sex marriage won’t be approved in another state. There may be challenges [seeking same-sex marriages] in other states, so it puts an enormous burden on clerks to make that determination.”
Am I wrong in this interpretation of what the 1913 law actually means? Correction on this point welcome.
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