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Can't they let bygone laws be bygone laws?

by Jeremy Hooper

200808151741Not willing to sit by and let loving, monogamous, tax-paying couples from around the country enter into a civil contract with themselves and their government, the MassResistance organization, an SPLC-certified "hate group," is now trying to reverse the recent repeal of the 1913 law that had previously prevented out-of-state gays from marrying in the Bay State. Brian Camenker and company have filed paperwork with the MA Secretary of State, and will try to collect 33,297 signatures before an October deadline in order to keep this tired issue alive:

Gay marriage opponents seek to reverse new law [AP via Daily Comet]

Though should they fail at this latest scheme, we hear MR will next cut out all middle men and instead proceed to excavate the remains of the state's founders, with the long-dissolved corpses' lack of positive response to the question, "Did you intend for same-sex marriage?" serving as infallible proof that gays' unions have no basis.

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Your thoughts

"The state constitution prohibits referendum questions on subjects that relate to religion, judges, the courts, particular localities of the commonwealth, state appropriations and certain provisions of the constitution's Declaration of Rights. Attorney General Martha Coakley has 14 days to review the proposed question."

I don't know much about constitutional law, but apparently there are limitations in the Massachusetts Constitution which prohibit referendum questions on "certain provisions" of the constitution's Declaration of Rights. One would guess that "equal protection" might be one of those provisions, and this might just be a nonstarter on that basis alone.

Posted by: Dick Mills | Aug 15, 2008 7:05:20 PM

I've recently started working in Massachusetts. I love the energy of Boston and the surrounding area. I'm considering moving up there from Rhode Island because quite honestly, our legislature is scared shitless to pass marriage equality.

And yes, the MA Constitution will apply in the case you mention.

At least if I move to MA I don't have to pay the ridiculous state taxes I now pay in RI.

And we can get married. Imagine that.

Posted by: Tony P | Aug 15, 2008 8:00:18 PM

It could be an interesting referendum petition: the state supreme court (SJC) said the original 1913 law _was_ constitutional.

But there are laws that are constitutional but must be passed via the legislature (under those circumstances mentioned), not via referendum. I am not convinced that this proposal is dead in the water because of equal protection. In my mind, if the SJC declared it constitutional before, it passed muster on equal protection. However, it might still run afoul of one of the other prohibited-by-referendum topics.

Posted by: tjc | Aug 15, 2008 11:14:29 PM

tjc, that is a very good point. And, on it's face, the legislation isn't discriminatory, because it applies equally to all out-of-state couples. Even though it has been used in very discriminatory ways, it is (was) an equal opportunity offender.

There may be no legal justification for it, but it would be fortunate if the court could factor in the discriminatory motives of the backers of the referendum. Those motives being to deny equal protection to out-of-state same-sex couples. Sadly, though, because they are not residents of the state, the argument could be made that they are outside of the purview of the SJC and not subject to the protections of the Massachusetts constitution.

Posted by: Dick Mills | Aug 16, 2008 5:44:18 AM

Does anyone know of a reason why this outdated law would benefit a state today? I mean, other than the obvious, given this hate-group's agenda. Seriously: Why would it be a good thing? Because if a real case can't be made for it on some platform other than sexual orientation, I don't see how it would get back onto the books. Am I missing something?

Posted by: | Aug 17, 2008 5:11:01 PM

Jeremy -- Sorry; forgot to fill in the identifier fields on my question as to why the bill would benefit a state today. BTW, the "remember personal info" button hasn't worked for me for a long time.

Posted by: Robin Reardon | Aug 17, 2008 5:12:28 PM

Robin, there really has never been a "good" reason that I know of for the law. Originally it was enacted because Massachusetts ALLOWED interracial marriages. More than likely, it was the lobbying of similar out-of-state-backed hate-groups that spearheaded the drive to get this law passed back in 1913. Because the purpose was to keep the interracial couples in those other states from getting married in MA and then returning to their home state.

From the point of view of those residents of Massachusetts, I can't think of any benefit that they ever gained from the law directly. Maybe someone else knows of any. Perhaps the state benefited because the law brought interracial couples (and now same-sex couples) to the state who became residents. Or other states might have offered some sort of in-kind benefit, though I can't imagine what that might have been.

But, for the residents of the state, I can't see any benefit today for reinstating the law. And, there certainly are costs to reinstating it - that "Vegas of same-sex marriages" label isn't just a derogatory term, Los Vegas definitely has benefited greatly from "drive-thru" marriage with accompanying honeymoon vacations. And, California stands to reap a similar windfall - so everyone acknowledges that a lot of money is at stake.

Personally, I can't see the referendum passing. I doubt that they'll even be able to get the signatures (the answer to that question would be interesting by itself). And, if they do get the signatures, it won't even be on the ballot until 2010.

Does anyone know if the repeal is in effect yet? I know that it was passed without the 3 month waiting period which should mean that the repeal will be effective soon if it isn't already.

Posted by: Dick Mills | Aug 18, 2008 12:42:59 AM

I can't imagine the people of MA allowing this small group to undo what has been done in the name of equality.

On another note, but related, my partner and I just spent a week in Provincetown. It was surprisingly easy to get our license and get married. As of Friday, Scott and I are legally married!

Posted by: keltic | Aug 18, 2008 6:41:02 AM

Dick Mills: Yes the repeal is in effect. It went into effect immediately without the 3 month waiting period. That's how my partner and I (now husband!) were able to get married last friday. The house voted to eliminate the 90 day waiting period and the Governor signed the repeal as soon as it got to his desk. I called the Justice of the Peace in PTown that day and set up our wedding ceremony. It turns out that she had 2 more ceremonies to perform after ours. Good thing I called early. She's going to be a busy woman.

Posted by: keltic | Aug 18, 2008 7:46:46 AM

"Not willing to sit by and let loving, monogamous, tax-paying couples from around the country enter into a civil contract with themselves and their government..."

Jeremy, I love your site and I get lots of great info from you. But please don't throw in the word "monogamous" for the marriage debate. That's not always part of the civil contract and isn't relevant to the right to have one!

Posted by: JVC | Aug 19, 2008 7:49:18 PM

Well to be fair, JVC, I didn't say monogamy was part of the contract. I simply described this one certain type of couple, primarily because it is the type frequently ignored by folks like MassResistance.

Posted by: G-A-Y | Aug 19, 2008 8:03:55 PM

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