That Librul Media
Mar 31st, 2006 at 7:17 am by Susie
Interesting. An entire long article about a 1913 law that says if your marriage isn’t legal in your home state, it’s not legal in Massachusetts - and how it’s been used against gay couples by Mitt Romney (who, after all, wants to run for President):
In oral arguments before the high court in October, a lawyer for the couples argued that the 1913 law had been unused for decades, until it was “dusted off” by Romney in an attempt to discriminate against same-sex couples. He ordered city and town clerks to enforce that law after the first same-sex marriages were performed in Massachusetts in May 2004.
Attorneys for the state argued that Massachusetts risked a backlash if it ignored the laws of other states by letting same-sex couples marry here when their own states prohibited such unions.
Nary a word about the law’s origins - to prevent interracial marriage. Which, of course, would lead to the obvious question: Why is this law still on the books?
Because, unlike the British, who make a concerted effort every few decades to weed out ancient and silly laws that are still on the books, we don’t. (They started doing this after an embarrassing case in around 1820 when a party in a criminal case demanded trial by combat. It was discovered at that point that trial by combat had not been outlawed, though it had been obsolete for almost 400 years.) This is part of the reason why the entirety of English statute law in force takes up less space on a bookshelf than Purdon’s Consolidated Pennsylvania Statutes.
So much for “full faith and credit.”
There are actually other grounds then race in determining the meaning of the law from 1913. These include, Polygamy, incestuous marriages, age, senility, incompetence.
Full Faith and credit means accepting the other state’s law, where the partners live, credence, as long as it is a valid law and not, as above in obvious violation of that state’s own laws.
Since the Massachusetts SJC found that the ban on gay/lesbian marriages was unconstitutional under the Massachusetts Constitution, it could address the rights of Massachusetts citizens. Non-citizens, Massachusetts or otherwise, do not get the same level of constitutional protection.
Spina is correct in saying the “home”state has paramount interest.
Actually, Full Faith and Credit isn’t generally recognized as dealing with marriages– on that point, the loony right is correct. Full Faith and Credit has traditionally related to judgments, and since marriage isn’t a judgment, it doesn’t really apply. (What does apply, as far as I’m concerned, is the Supreme Court case Loving v. Virginia, which declared marriage to be a fundamental right, period. Gays should have the same fundamental rights as any other American.) This is why that 18 year old who knocked up the 15 year old, then went to the next state over and got married to her still got arrested when he got back. I suspect you could make a good full faith and credit argument relating to inheritances, etc., but unfortunately, I don’t think it works with marriage.
(There was a really good law review article about six or seven years ago written by Larry Kramer– not the playwright, but the law professor– on this very issue.)