Mass. residency lawsuit update

[Lexingtonian]

http://www.boston.com/news/local/articles/2005/03/12/same_sex_marriage_residency_law_fought/

Same-sex marriage residency law fought
Clerks, 8 couples file briefs with SJC
By Janette Neuwahl, Globe Correspondent  |  March 12, 2005

Less than a year after Massachusetts began marrying same-sex couples, 13 city and town clerks and eight couples who were denied marriage licenses filed briefs yesterday with the state's highest court opposing a requirement that couples who want to get married in the state must say they plan to live in Massachusetts.
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Attorney General Thomas F. Reilly, following up on a request from Governor Mitt Romney, told clerks last May that they could officiate only the marriages of same-sex couples who planned to live in the Bay State. In his letter, Reilly explained that if the clerks defy the state order, they could be subject to criminal prosecution. Reilly and Romney cited a 1913 state law that bars marriages in Massachusetts if the couple's home state would not accept their union as legal.
<...>
They argued that by holding same-sex couples to a higher level of scrutiny than heterosexual couples, they are violating the Supreme Judicial Court's Goodridge decision of November 2003 that legalized same-sex marriage. The SJC will hear oral arguments in September.
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Gay & Lesbian Advocates & Defenders, or GLAD, argued in a brief it filed with the court on behalf of eight out-of-state same-sex couples that the SJC's landmark ruling also applies to nonresidents seeking to marry in Massachusetts.

Plaintiffs in both lawsuits (Johnstone v Reilly, Cote-Whitacre v DPH) filed briefs yesterday. The one with a more pertinent civil rights argument is the one in Cote-Whitacre, but in fact the two attack the same law from two different angles; I suppose it's not easy to consolidate them. The key arguments are violation of the federal Equal Protection guarantees (surprise, surprise), incompatibility with the Goodridge decisions (majority and minority opinions), and violation of the federal Privileges And Immunities Clause. The SJC will hear the case (it took all these months to finagle it up the court ladder) in September.

The Globe article on the Cote-Whitacre filing is available only via payment at this point on the web, but I'll check my print copies and put some of the article up. The brief (worth a good look) is at the GLAD website at
http://www.glad.org/marriage/cote_documents.shtml

[Ian David]

1. There's also "fair practices" and "selective prosecution

I suggested that someone do a search of out-of-state marriages that violate laws from other states that were still on the books.

For example, some states forbid marrying "drunkards" or the "mentally enfeebled."

Until 2000, inter-racial marriage was still technically illegal in Alabama.

My idea was to file suits with the states to have those "illegal" marriages nullified, and prosecute the clerks that sanctioned them.

[Lexingtonian]

3. have a look at the brief (it is fairly short)

There are citations of lawsuits involving first cousins that were illegal in their home states. They're quite old, but it seems the paralegals dug them up. Finding pertinent recent cases would be pretty difficult, though any and every state could probably find a few instances of out-of-stater bigamous marriages contracted to throw at any other. In the brief the use of those old cases isn't straightforward- the plaintiffs have to parse stuff in to 'void' marriages to contrast with 'annulled' ones, and then say the law is written badly enough that enforcement is legally a mess. Throw in that the governor, Romney, is withholding all out-of-stater marriage certificates from official 'registration' despite the diverse patchwork of unworkable regulations and barrings and nonregulations by the states, and there is no further need to demonstrate that enforcement of the law is fundamentally unworkable.

'Technically illegal' is not the same as illegal or unenforceable. Loving v. Virginia made all 'anti-miscegenation' laws unenforceable, so the point about Alabama is moot. The courts permit states to keep laws on the books that are completely overturned, i.e. never enforcible. Legislatures eventually strike bad social laws from the books, but it takes a generation or two past their being disenforced, if not longer, until the last elderly conservatives consent to it. Look at that vote in Alabama this year to not strike some Jim Crow law about schools from the books and the running Confederate flag arguments.

Btw, there are laws that states have that apply to them which they admit but have never actually consented to as necessary- Mississippi has apparently never in a technical sense ratified the 13th Amendment, Kentucky was the last state to ratify the 14th -in 1976-, and Tennessee has never ratified the 15th.

[Lexingtonian]

2. my bad

The two lawsuits are in fact consolidated now, proceeding as Cote-Whitacre v. DPH.