By JOANNA GROSSMAN
lawjlg@hofstra.edu
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Last May, Massachusetts issued a marriage license to a same-sex couple for the first time. But already, an effort was brewing to make it difficult for out-of-state same-sex couples to travel to Massachusetts to marry.
A month before that first license was issued, Governor Mitt Romney had announced his intention to enforce a little known state law, enacted in 1913, that bans "evasive" marriages - marriages where couples who could not marry in their own state travel to another that will permit their marriage.
Currently, Massachusetts is the only American state to permit same-sex marriage. Accordingly, Romney's intention was clear: to exclude non-Massachusetts couples from entering the state to marry, unless they have the intent to permanently reside there.
"Massachusetts should not become the Las Vegas of same-sex marriage," Romney warned. (Nevada, of course, is legendary for affording out-of-staters access to divorces granted more quickly and easily than their home states would permit. When other states did not, Nevada offered both short residency requirements and an expansive list of grounds for divorce.)
Now, in the case of Cote-Whitacre v. Department of Public Health, Massachusetts' Supreme Judicial Court (SJC) will rule on whether the Governor will succeed in his attempt to use the marriage evasion law to block out-of-staters from entering into Massachusetts same-sex marriages.
The SJC's ultimate ruling will be significant not only in its own right, but also in framing future debates about out-of-state recognition of same-sex marriages. So far, such debates have been scattered and piecemeal; the SJC ruling may focus the discussion.
How the Marriage Evasion Law Litigation Arose and Progressed
The marriage evasion law requires, among other things, that city and town clerks cannot issue a marriage license unless and until they have seen proof, and are satisfied, that an out-of-state applicant is not prohibited from marrying in his home state. Initially, some county clerks in Massachusetts openly refused to do so - granting licenses to out-of-staters without requiring such proof.
In response, Governor Romney ordered them to cease issuing licenses to out-of-state same-sex couples. He and other state officials also asked every other state in the Union to confirm or deny that it would not permit a same-sex couple to marry. Most states did not reply, most likely because their statutes or constitutions make clear that same-sex marriages are not authorized. A few attorneys general responded, but none stated affirmatively that a same-sex couple would be able to obtain a marriage license in their respective states.
In addition, the marriage license application forms were amended to ask specifically for a declaration of residency, and to provide space for the clerk to both describe the supporting documents offered to prove residency and to certify their sufficiency. And the Massachusetts Department of Public Health compiled a list of the marriage impediments from all 50 states, the District of Columbia, and the U.S. territories, so that clerks could easily cross-check each application against the right set of marriage impediments before issuing a license to any particular couple.
The clerks statewide eventually agreed to comply with the marriage evasion law. (Interestingly, though, the New York Times wedding announcements suggest that at least some out-of-state same-sex couples have since married in Massachusetts.)
Subsequently, eight same-sex couples sued to challenge the marriage evasion law. Five of the couples had successfully obtained licenses; three had been denied.
The couples sought a preliminary injunction against enforcement of the marriage evasion law. But the trial court denied their request, finding "no likelihood of success on the merits" as to any of their three claims.
The couples appealed, and the defendants asked that the appeal proceed immediately to the state's highest court -- the Supreme Judicial Court (SJC) - by requesting "direct appellate review" (DAR).
To be eligible for DAR in Massachusetts, a case must present an issue of first impression, concerning either the federal or Massachusetts constitution, and it must also present a question of public interest that will require a final determination by the SJC. (Goodridge v. Department of Public Health, the case in which the SJC authorized the issuance of marriage licenses to same-sex couples, reached the SJC in this way.)
The SJC granted the application for DAR, rightfully so. Final briefs will be filed in May, and the case will be set for argument sometime thereafter.
The Provisions of the Marriage Evasion Law
Massachusetts' evasion law was patterned after the Uniform Marriage Evasion Act (UMEA), adopted by the National Conference of Commissioners on Uniform State Laws (NCUUSL) in 1912. (NCCUSL is an independent body, with representatives from every state, which drafts and promulgates uniform laws for states to adopt. Its purpose is to promote uniformity among state laws in subject areas where it is necessary or desirable.)
Interestingly, however, in 1943, NCCUSL withdrew its own uniform act as obsolete. And in 1970, NCCUSL superseded it with the Uniform Marriage and Divorce Act (UMDA). UMDA adopts a strict place-of-celebration rule - meaning that a marriage that is valid where celebrated is valid everywhere - and thus rejects any idea of "evasive marriages." Nevertheless, Massachusetts' law based on the long-outmoded UMEA still stands.
Part of Massachusetts' marriage evasion law states that when residents of Massachusetts leave the state to marry, those marriages will only be recognized if they could have been performed in-state. But that provision is not relevant for us here - and has little current application. (One limitation that would have made Massachusetts' stricter than many other states - a prohibition of marriage by a person with communicable syphilis - was repealed in 2004.)
The relevant part of Massachusetts' marriage evasion law states that "no marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void."
This provision was essentially ignored, and went unenforced, in Massachusetts until same-sex marriage became legal there. At that point, state officials - as they admitted in the course of the lawsuit - resurrected the law, and the Governor announced his intent to enforce it. They said they were prompted to do so by media reports that same-sex couples from all over the country were planning to marry in Massachusetts and then return home to demand that their home states recognize their marriages.
The Three Challenges to the Marriage Evasion Law
In their suit, the eight couples bring three claims. None of these, it turns out, is a slam-dunk for either side.
The first claim turns on the scope of the SJC's prior decision in Goodridge. It argues that the SJC there declared a general right for same-sex couples to marry in Massachusetts - not just a right limited to Massachusetts residents.
Some of Goodridge's language is directly relevant here: First, the SJC explicitly left intact the "Legislature's broad discretion to regulate marriage." Second - in rejecting the argument that Massachusetts should not be the lone state to recognize same-sex marriage - it wrote: [W]e would not presume to dictate how another state should respond to today's decision. But neither should considerations of comity prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution."
In addition, the marriage evasion law - contained in a separate section of the code - presumably survived Goodridge, and was even cited in one of the Justices' concurrences.
Did Goodridge already resolve the very question the new suit presents? On one hand, it was a very broad opinion that spoke to human rights - not the right of Massachusetts residents alone. On the other hand, the SJC did not take up the marriage evasion law, in particular, in Goodridge. Overall, the SJC will probably take up the marriage evasion act question afresh - rather than simply relying on Goodridge.
The eight couples' second claim is that the law is being selectively enforced - to target same-sex couples alone. According to the trial court, the standard is high: "clear and intentional discrimination."
In favor of the plaintiffs is the state's admission that it resurrected the law because same-sex marriage had been legalized supports their case. But against them is the trial court's finding that the evidence did not meet the high standard necessary.
Finally, plaintiffs may also have a problem when it comes to a remedy: The remedy for selective enforcement of the law might only be consistent enforcement - which would not assist non-residents in gaining access to same-sex marriage in Massachusetts.
Third, and most importantly, plaintiffs claim that the evasion law violates the Privileges & Immunities clause of Article IV of the U.S. Constitution. That clause states that the citizens of each state shall be guaranteed the privileges and immunities of every state.
For their claim to succeed, the SJC must hold that the law denies non-residents a right that is fundamental, and that the denial cannot be validly justified by the state. In an earlier SJC holding, for instance, the SJC held that the right to pursue one's livelihood is fundamental, and that the state could not justify denying Massachusetts bar admission to non-residents.
Which side will prevail on this claim? On one hand, Goodridge is written in such broad and unrelenting terms that it is hard to imagine the same court would uphold the marriage evasion law -- given its origin, motivation, and current implications.
On the other hand, the SJC may hold that the right to marry is not truly fundamental - as understood in Privileges & Immunities cases, but only important enough that it cannot selectively be withheld from some groups, but made available to others. (If so, a sad irony would result: The right to practice law would be fundamental, but the right to marry would not. It would be a result only a lawyer could love!)
Alternatively, the SJC may hold that while it is irrational to discriminate on the basis of sexual orientation, it is rational to discriminate on the basis of residency. Thus, it may permit Massachusetts to apply its marriage evasion law, as long as it does so consistently.
Why the Massachusetts Legislature Should Repeal the Marriage Evasion Law
Regardless of how the SJC proceeds - but especially if it upholds the validity of the marriage evasion law -- the Massachusetts legislature should repeal its marriage evasion law. The National Conference of Commissioners on Uniform State Laws was wise to get rid of this rule in 1943. Now, over sixty years later, it's time for Massachusetts to do the same. For marriage to be meaningful, it must be portable.
First, if marriages are not portable, unfairness as between the parties to the marriage will doubtless result. Marriages that do not survive state lines are vulnerable to either party's desire for a free way out. No state has an interest in permitting one spouse to abandon the other (and any children of the relationship) hassle-free.
And, yet, that is exactly what restrictive rules of marriage recognition make possible. A same-sex spouse from Massachusetts need only move to any one of the forty states whose laws expressly prohibit same-sex marriages, in order to be relatively confident that the union will not be recognized and that the obligations created by marriage cannot be enforced.
Second, if marriages are not portable, both parties may suffer unfairly: If they cross state lines, they lose the benefits and protections that their marital status had provided.
Massachusetts Need Not Worry That It Will Dictate National Marriage Policy
Are there any downsides to repealing the marriage evasion act? Not really.
For one thing, Massachusetts need not worry that it will be dictating marriage policy for the whole country. Even if Massachusetts repeals its marriage evasion act, other states will still be able to each decide whether or not to recognize Massachusetts marriages.
In talking about the Defense of Marriage Act (DOMA) in 1996, members of Congress suggested - to the contrary -- that the U.S. Constitution's Full Faith and Credit Clause requires the states to recognizes marriages from another state.
But no Supreme Court case has ever so held. And the law of the states on marriage recognition issues comes from common law principles of comity - that is, the idea that states should respect each others' law - and not the Full Faith and Credit Clause.
Historically, states had grave disagreements about these matters. The ban on interracial marriage, for example, was common, but never universal. States always differed in the minimum age they imposed for marriage. Some states restricted marriages by those with mental or physical disabilities; others did not. Some restricted marriages when the parties were related by marriage (as opposed to by blood); others did not. These differences produced conflicts from time to time, and those conflicts were resolved in courts, which applied these common law principles to decide, in each case, whether the marriage should be recognized or not. This kind of litigation gives the opportunity for meaningful consideration of the relative interests of the state, the general population, and the parties to the prohibited marriage.
These common law principles would allow the overwhelming majority of states to disregard Massachusetts same-sex marriages if they so chose. Under these principles, a state can choose not to recognize a marriage because, among other reasons, it is contrary to the state's "positive law." Currently, four-fifths of the states have "positive law" - that is, a statute or constitutional provision - that is expressly anti-same-sex marriage. As long as these laws stand, these states may invoke common law to justify refusing to recognize out-of-state same-sex marriages.
Thus those who defend the Massachusetts marriage evasion statute as a necessary component of federalism - of states' being able to choose their own course when it comes to marriage - are presenting a very weak argument. Plainly, the current enforcement of the statute is motivated by an intent to discriminate against same-sex couples. Any belated federalism justification that might be offered is unconvincing in light of longstanding common law.
The flip-side of federalism is important, too. Repeal of the evasion law would permit non-residents to marry in Massachusetts and the states that do not expressly ban recognition of such marriages would have the opportunity to grant it. Historically, many states gave recognition to marriages from elsewhere even though their own laws prohibited them.
Indeed, an 1819 opinion from the SJC in Massachusetts, Medway v. Needham, is one of the most-cited examples of such a case. There, the court granted recognition to an evasive, interracial marriage that the Massachusetts couple had crossed state lines to obtain.
As the court explained in that case: "Now, it is a principle adopted for general convenience and security, that a marriage, which is good according to the laws of the country where it is entered into, shall be valid in any other country. And this principle is considered so essential, that even when it appears that the parties went into another state to evade the laws of their own country, the marriage in the foreign state shall nevertheless be valid in the country where the parties live."
There is every reason for Massachusetts to repeal its antiquated marriage evasion act, and no good reason to retain it. Even if the SJC refrains from holding the statute unconstitutional, the Massachusetts legislature should still repeal it on the ground that the only genuine rationale for its contemporary application is discriminatory.
Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University, currently visiting at the University of North Carolina School of Law. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site. .
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