Wednesday, July 30, 2008

Massachusetts Repeals 1913 Law Intended to Ban Interracial and Now Same-Sex Marriages

Leah Krieger and Orly Jacobovits join celebrations outside the Massachusetts State House in 2006 after legislators voted against a measure that would have put lesbian/gay marriage on the ballot. Photo by Jodi Hilton for The New York Times.

Massachusetts Repeals 1913 Law Intended to Ban Interracial and Now Same-Sex Marriages

Today the Massachusetts State Legislature has repealed the "1913" law which was used by the Mitt Romney administration to prevent out-of-state same-sex couples from being able to marry in Massachusetts. The "1913" law, more accurately known as Massachusetts General Laws Chapter 207, Section 11, stated "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."

According to Wikipedia, "Massachusetts State Senator Harry Ney Stearns sponsored the 1913 Law on March 7, 1913. The bill was signed three weeks later by Governor Eugene N. Foss. No record of the state Senate debate has been found, and the motivation for the law is unknown. Some legal experts have argued that the original purpose of the legislation was to block interracial couples from states that banned interracial marriages from going to Massachusetts to get married. These experts note that the law was enacted at the height of a public scandal over black heavyweight boxer Jack Johnson's interracial marriages and suggest that the law was partially a reaction to the Jack Johnson affair.

"The Massachusetts law of 1913 was enacted after the proposed introduction in the United States House of Representatives in 1912 of an Anti-Miscegenation Amendment to the Constitution. This proposed nation-wide ban on interracial marriage sparked a movement among state legislatures to ban interracial marriage. By 1913, half of the 18 states that had lacked anti-miscegenation laws in 1910 introduced legislation banning interracial marriage in their state. However, Wyoming was the only state without such a ban that actually enacted an anti-miscegenation law during that time period. Massachusetts had legalized interracial marriage in 1843."

On 13 November 2003, the Goodridge vs. Dept. of Public Health judgment by the Massachusetts Supreme Judicial Court ruled that Massachusetts could not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry." This was followed on 17 May 2004 by the legalization of same-sex marriages in Massachusetts, the first U.S. state to do so. Immediately after the ruling, right-wing forces funded by Governor Mitt Romney and the Republican Party sought to overturn the decision by amending the state constitution. The most recent effort in this line was defeated by the state legislature on June 14, 2007.

In the interim, Massachusetts Attorney General Tom Reilly and other Romney-aligned state officials resurrected the "1913" law as a means of temporarily stopping same-sex marriages by arguing "enforcing the law was Massachusetts's way of respecting other states that have banned such marriages".

At that point, Gay & Lesbian Advocates & Defenders (GLAD) went back to court to challenge the "1913" law in the case known as Cote-Whitacre et al. v. Dept. Public Health. They won their case in 2006, as outlined in this press release from GLAD's website (which also has the final judgments and other details of the court case):

"On March 30, 2006, the Massachusetts Supreme Judicial Court determined in the absence of a home state’s 'express prohibition' against marriage by same-sex couples – through a constitutional amendment, statute, or controlling appellate decision, Massachusetts must allow same-sex couples from that state to marry. This decision had a substantial impact on three states:

"Rhode Island
On September 29, 2006, Massachusetts Superior Court Judge Thomas Connolly ruled there is no explicit prohibition in Rhode Island law preventing same-sex couples from marrying, and, as such, Rhode Island same-sex couples could come to Massachusetts to wed. (In February, 2007, RI Attorney General Patrick Lynch issued a statement that Rhode Island will recognize the marriages of same-sex couples married in Massachusetts, and GLAD is working with partners in Rhode Island to ensure that these marriages are respected.)

"New York State
Judge Connolly also ruled that because the New Court of Appeals ruled on July 6, 2006, against marriage equality in the state’s own marriage case, couples from New York cannot marry in Massachusetts. GLAD subsequently returned to court on behalf of the New York couple in the case, Tanya Wexler and Amy Zimmerman, who married in Massachusetts in May, 2004. In a judgment on May 10, 2007, Judge Connolly ruled that Massachusetts marriages licenses issued to New York same-sex couples before July 6, 2006 are completely valid and never should have been put into question by the 1913 law.

"New Mexico
Finally, noting that New Mexico law is also silent on the question of marriage between same-sex couples, GLAD worked with the Commonwealth to correct the erroneous denial of marriage licenses to New Mexico same-sex couples. On July 18, 2007, the Massachusetts Department of Public Health and Registry of Vital Statistics issued an official corrective notice providing clerks with the authority to grant such licenses."

Today, with the repeal of the "1913" law by the legislature, this denial of marriage tactic has been definitively laid to rest.

Gay & Lesbian Advocates & Defenders (GLAD) is New England’s leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression. One of my dearest friends works for this group, and I could not be prouder of her (and them) at this moment.