The Legislature Seeks to Repeal the 1913

Marriage Residency Law

On Tuesday, July 15, the Massachusetts Senate approved a bill, Senate 800, that would export same-sex marriage to other states. The Senate acted by voice vote, allowing the senators to avoid putting their individual positions on record in an election year. The bill is on a fast track, and if it has not already been voted on in the House by the time this report is published, readers are urged to contact their state representatives as soon as possible to oppose its passage.

If passed by the House and signed into law, the legislation would permit same-sex couples from states that do not recognize same-sex marriage to travel to the Commonwealth for the sole purpose of obtaining a marriage license to take back to their home state. The couples could then use their Massachusetts “marriage” as a tool for challenging their states’ own laws in court.

The Roman Catholic Bishops in Massachusetts have issued a statement opposing the repeal of the 1913 law, saying in part that “Our legislature is attempting to impose the Supreme Judicial Court’s definition of marriage upon other states. Such action endangers the principle of state sovereignty that gives each state the right to govern itself and enact its own laws.”

During a brief floor “debate” within which no senator spoke against the bill, Senator Dianne Wilkerson (D-Boston) argued that the current law, passed in 1913 and requiring out-of-state applicants to prove that their marriage would be recognized at home, was motivated by a desire to stop biracial couples from states where biracial marriages were not allowed from getting married in the Commonwealth. She claimed that the 1913 law was proposed in response to national media reports that a then-prominent black boxer, Jack Johnson, had married a white woman. She called the 1913 law “pernicious,” and other senators chimed in, asserting that the current law was “contrived in shame” and “represents a segregationist past.”

The trouble is, this supposed history lesson was convincingly refuted in a recent, unsuccessful court case brought by same-sex marriage advocates challenging the original 1913 law. The Supreme Judicial Court held in the Cote-Whitacre v. Dep’t of Public Health case that the 1913 law is a valid protection of other states’ sovereignty.

At the trial level, then-Attorney General Tom Reilly presented a comprehensive and devastating critique of the very same historical claims that were revived in the more recent Senate debate. Reilly found, for example, that the original law was drafted before the controversy surrounding Jack Johnson had erupted. His analysis showed that Massachusetts had permitted biracial marriages seventy years before, and that there was no campaign in the state to revisit that issue in 1913.

Reilly’s critique was so effective that the opponents of the 1913 law dropped the question, never responding to this portion of his brief and declining to raise the historical issue on appeal. The trial court concluded that Reilly’s trial brief “set forth credible evidence that the original goal of the drafters [of the 1913 law] was to prevent evasion of existing divorce laws, not the limitation of interracial marriages.” None of this was mentioned in the Senate debate. The trial brief and trial court ruling in the Whitacre case are available on the website of the Gays and Lesbians Advocates and Defenders (www.glad.org).

Please contact your state representative to urge him or her to oppose the repeal of the marriage residency law by voting “no” against Senate 800. A “no” vote respects the right and sovereignty of other states to determine their own laws without meddling by Massachusetts. The phone number for the State House switchboard is 617-722-2000 (ask to be forwarded to your representative) and email addresses and direct phone numbers of House members can be found online at http://www.mass.gov/legis/memmenuh.htm. Anyone with questions may call the Massachusetts Catholic Conference at 617-367-6060.