Double Standard?

Jack and Jill want to get married on Cape Cod, and then return to their home in Cleveland. They can do so.

Jane and Jill want to get married on Cape Cod, and then return to their home in Boston. They can do so.

But, Jack and Jim want to get married in Cape Cod, and then return to their home in Nashville. As of today, they can’t.

Does this make even the remotest bit of sense? This is an illogical reading of the Full Faith and Credit clause of the Constitution, if you ask me. A legal arrangement made in one state must be honored in another. That’s why a non-competition covenant made in Minnesota can be enforced in California, even when California law would otherwise render that contract void.

Gov. Romney is quoted in the article as saying “We don’t want Massachusetts to become the Las Vegas of same-sex marriage.” As The Wife sarcastically asked, “Oh, so he must want all the gays in the country to move up there and stay.” She also points out in a more serious tone that weddings are big business, and by discouraging them, Massachusetts is foregoing substantial amounts of income. Of course, this is not the Supreme Court’s concern, but the point stands nevertheless.

I expected different from the court that was in the vanguard of recongizing equal rights for homosexuals.

UPDATE: I still haven’t found the opinion, but I have seen further discussion. It appears that the ruling was not based on the Full Faith and Credit Clause, but rather on a 1913 Massachusetts statute deferring to other states’ anti-miscegenation laws. That law says what it says and after reading the statute (MGL 207-11), it certainly seems that the Supreme Judicial Court could not reach any other result without overturning that statute. Since the Court properly labored to find a way to interpret that staute without requiring its reversal, that’s the result — because Massachusetts voluntarily deferred to other states’ restrictions on marriage back in 1913, a same-sex marriage in Massachusetts is only valid in another state that recognizes same-sex marriages on its own.

Prof. Dale Carpenter at Volokh Conspiracy suggests that while this is something of a setback for same-sex marriage advocates, it may be the lost battle that wins the war — because it takes a lot of the wind out of the sails of those who argue that a Constitutional amendment defining marriage is necessary to stop same-sex couples from using Massachusetts law and the Full Faith and Credit Clause to demand recognition for their same-sex marriage license from Massachusetts, despite their own state’s laws refusing to do so. Since it appears that the Supreme Judicial Court of Massachusetts has used MGL 207-11 to limiting its same-sex marriage right to Massachusetts residents only, there is no real need for this Constitutional amendment. Perhaps Prof. Carpenter has a point here.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. There’s a Simpsons episode in which Homer comes to the same realization Becky did. He opens up a (garage) chapel that caters to same-sex couples and rakes in the dough.

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