A haze of uncertainty still lingers over the legal logistics of conducting same-sex marriages as state registry clerks prepare for May 17, when the Massachusetts Supreme Judicial Court’s decision allowing the weddings goes into effect.
But a 1913 Massachusetts law is calling into question whether many out-of-state citizens will be allowed to come to the commonwealth to marry. Any person from outside of Massachusetts seeking marriage in the state will not be allowed to wed if the marriage cannot be legally recognized in their home state, according to the statute.
“What people do when they get married is live their lives,” said Mary Bonauto, the Gay ‘ Lesbian Advocates ‘ Defenders attorney who successfully argued the Goodridge v. Massachusetts Department of Health Supreme Judicial Court case that legalized the marriages.
Bonauto said the historical context of the 1913 statute is unclear. Although analysts say it may have been created to prevent interracial marriage, Bonauto said she was not sure why the law was enacted.
“I don’t know the purpose of it, actually,” she said.
Many supporters of gay marriage consider past animosity toward interracial marriage as analogous to refusing same-sex couples marriage.
Bonauto said she is researching the law’s history. She said that lawmakers are “dusting off” the statute, and that it has barely been used in the past.
But the statute could work to the advantage of same-sex marriage supporters, because the signed affidavits that prove the marriage is viable in other states – which are required by the law – are never forced upon heterosexual couples. Some registrars have said they may even decide to ignore the statute.
“I’m going to assume for the purposes of this conversation that this statute is constitutional,” Bonauto said. “Personally, I don’t believe that it is.”
Bonauto said all she can do is wait for history to take its course and that Massachusetts is in “wait and see mode.”
“You have to go out of your way to make a marriage void,” Bonauto said.
Suffolk University Law School professor Charles Kindregan Jr., an expert on family law, said that he thinks the statute will affect the possible same-sex marriages this summer “quite a bit.”
“I think the statute ought to be appealed,” he said. “It is an archaic statue, but it’s still the law right now.”
The law was originally designed to create uniformity in all states, according to Kindregan. He said the law was unaccepted – that most states never adopted it and that the Commissioner of Uniform State Laws withdrew it – but that Massachusetts kept it on the books.
“As far as I know, there’s never been a case [of marriage] denied on the basis of this statute,” he said.
But many out-of-state same-sex couples have asked about residency requirements. Secretary of the Commonwealth William Galvin said there is not a formal procedure to become a Massachusetts resident on the state website. He listed several informal attributes of residency, including paying rent, utilities and mortgage and telephone bills.
Kindregan affirmed that there is not an official definition of Massachusetts residency, but said he was skeptical that there would be loopholes to gain residency and access to same-sex marriage.
“The question of residence is a question of fact,” he said.
Without proof of residency, such as voter registration, tax-return filings, driver’s licenses or automobile insurance, a same-sex couple’s pleas for residency would most likely not be accepted, Kindregan said. He also said it is nearly impossible for informal criteria to be fulfilled in time to take advantage of the Supreme Judicial Court ruling.
Another court ruling would be needed to determine whether or not same-sex Massachusetts couples who marry and then move out of state will still receive marital benefits, Kindregan said.
He added that other states may not know about Massachusetts’ obscure statute and not apply it to incoming same-sex couples. He also said “the word is going to get around” about the statute because of press coverage, and that some states may use the statute in deciding how to administer marital rights to gay couples.
Additionally, 38 states have enacted Defense of Marriage Acts, which allow states to deny the marriages as well as not recognize same-sex weddings conducted in other states. Because of DOMAs, the majority of out-of-state residents seeking same-sex Massachusetts marriages will run into problems in other states, regardless of the statute.
“I’m not sure that federal government can enact a law like that,” Kindregan said in reference to the federal DOMA, which President Bill Clinton signed into law in 1996. Kindregan also predicted that there would be future judicial challenges to the DOMA.
“I think we’re going to have dozens of them,” he said. “I don’t see how we can avoid it.”
Similar to Bonauto, Kindregan said little can be determined at this point since there is no legal precedent for any of these issues.
“We are at the outer edge of the legal system,” he said. “But it would be an interesting time to become a lawyer.”