Gay Couples Line Up for Mass. Marriages

[Dreamer128]

At Midnight, Cambridge Becomes First to Issue State-Sanctioned Licenses
By Jonathan Finer
Washington Post Staff Writer
Monday, May 17, 2004; Page A02

CAMBRIDGE, Mass., May 16 -- After months of eager anticipation mixed with nagging worries that this day may never come, gay couples across Massachusetts and beyond converged on Cambridge on Sunday night to apply for the nation's first state-sanctioned, same-sex marriage licenses.

At 12:01 a.m. Monday in this city across the Charles River from Boston, the first of several dozen couples who had lined up outside City Hall in the rain early Sunday was called into a basement corridor to declare their intention to marry.

Marcia Hams, 56, and Susan Shepherd, 52, of Cambridge, who have been together for 27 years, were the first couple to line up, at midnight Saturday, and were the first to apply for a marriage license before a crush of cameras.

"I feel real overwhelmed, real happy," Shepherd said. "I could pass 0ut at this point." Hams and Shepherd plan to marry next Sunday.

By 10 p.m. Sunday, more than 1,000 people -- including couples waiting in line and their supporters throwing rice and confetti -- were gathered outside City Hall, along with fewer than a dozen protesters. At 10:30 p.m., couples began receiving numbers to determine the order in which their applications would be processed, and an hour later 230 couples had passed through the front doors.

The city also organized a celebration, complete with live music and speeches from activists, and a giant wedding cake that was cut after the stroke of midnight.

An interfaithservice called "Blessings on the Eve of History" to commemorate the start of gay weddings was held Sunday evening in Cambridge's Christ Church.

During a sermon praising what he called "the triumph of freedom over oppression," the Rev. Steven Charleston said opponents of gay marriage say it will end civilization as they know it. "Perhaps they're right," he said to wild applause.

After he spoke, Jewish and Christian clergy fanned out to bless dozens of same-sex couples in the pews.

Cambridge Mayor Michael A. Sullivan, whose city was the only one in the state that started the license-application process the minute it became legal, said: "We're a diverse and accepting community, and this is a way to welcome the couples and their families. That's what it's all about. It's not a race. It's about fairness and equality."

The landmark 4 to 3 ruling by the state Supreme Judicial Court (SJC) in November deemed unconstitutional a ban on gay marriage. It was stayed for 180 days to give the state time to prepare.

In recent months, a host of challenges to the decision have been beaten back in the courts, including a request for a federal injunction that the U.S. Supreme Court denied Friday. An appeals court will hear the matter in June.

Lawmakers who opposed the SJC's ruling have begun amending the state's constitution to outlaw gay marriage, giving preliminary approval in March to a measure that could be on the ballot by November 2006.

On Monday morning, the state's other 350 city and town clerks will begin issuing marriage licenses to same-sex couples, and weddings will be held throughout the state.

"It's been an emotional roller coaster," said Marianne Duddy-Burke, 43, of the period since the SJC decision. She plans to be married to her partner of 10 years at a Boston hotel in June, but added a clause to the reservation contract so she would not lose her deposit if legal circumstances change.

Gloria Bailey of Orleans, Mass., said that Monday would be "the culmination of a lifelong dream." She and Linda Davies, her partner of 33 years, were among the couples whose lawsuits led to the November court decision. They gathered with the six other plaintiff couples for a "rehearsal brunch" Sunday in Brookline, Mass., and plan to be married on Cap Cod's Nauset Beach.

All couples planning to marry Monday must have submitted their applications, then paid a fee to waive the required three-day waiting period before picking up their licenses. There is no way of knowing how many couples will be married here in the coming weeks, or who will be first.

As of Friday afternoon, Fenway Community Health, a Boston health center that caters to gay patients, had conducted more than 450 premarital blood tests. More than 100 others had been scheduled.

Towns with large gay populations, such as Northampton and Provincetown, also expected many applicants.

Even harder to predict is how many couples from outside Massachusetts will be traveling here to marry. Invoking a 1913 statute that has rarely been enforced in recent years, Gov. Mitt Romney (R) declared that same-sex couples who live in other states are ineligible to marry in Massachusetts because they cannot legally marry in their own states.

Calling that interpretation discriminatory, officials in Provincetown voted last week to marry out-of-state couples, and clerks in Worcester and Somerville have indicated they also will. Other cities, including Boston and Cambridge, have said they will follow Romney's guidelines, but will not require proof of residency.

Romney has threatened legal consequences against clerks who do not follow his guidelines. He said licenses issued to out-of-state couples would be "null and void," a stance that is expected to be challenged in court.

At least two gay couples traveled from New York to Boston last weekend, as part of a group organized by the Civil Marriage Project, which last year arranged similar trips to Canada. Robin Goldman and Cris Beam said they plan to apply for a marriage license Monday in Somerville and to marry there May 20.

"I certainly don't discourage couples from out of state from coming here, I just tell them what the consequences are," said J. Mary Sorrell of Amherst, Mass., who became a justice of the peace in February because she wanted to help gay couples marry. She said she expects to officiate at 24 same-sex weddings in the next two weeks, including five for out-of-state couples.

Staff writer Alan Cooperman in Cambridge contributed to this story.

© 2004 The Washington Post Company

[Timber Loftis]

As a follow-up, New York has said it will give full faith and credit to gay marriages performed in another state.

[Timber Loftis]

Interesting that it's also the anniversary of Brown vs. Board of Education of Topeka.

[Illumina Drathiran'ar]

Hey, what was said then still holds true now. Seperate is not equal.

[Khazadman Risen]

This is going to lead to a lot of friction between these uber-left states and the more restrained states.

[Timber Loftis]

Separate is not always unequal. I have a lengthy argument which states basically that a homosexual couple has no more right to be called "married" than I have to be called "female." No matter how much I complain and whine, all of my certificates and identities will say "male." The Mass. Court was dead wrong, just so you know. If the people of the state want to call it "marriage" that's fine, but it is NO MORE unconstitutional for them to call a hetero union a "marriage" and a homo union a "civil union" (which was what the legislature proposed) than it is for my government to call me "male" and someone with differing genetalia "female." Rights of fair and equal treatment under the law are one thing, but Nomenclature is not a fundamental right.

I just want to know if these marriages will still be valid a few years from now when the people of Massachussetts adopt a constitutional amendment banning gay marriage.

[Chewbacca]

TL- You assume the people here are going to vote for the banning amendment, and assume it will pass through the leglislature once more as well and I think that is assuming much.

Now if the banning amendment does pass it's upcoming hurdles- I also wonder what will happen to the thousands upon thousands of couple's who have been married.

[Chewbacca]

Anyway I am quite happy that my gay friends and family here can now have the same right and ritual of going to the courthouse and getting a license. My wife and I just did that ourselves 3 weeks and 3 days ago.

Funny how one of the things I thought of that day was how shameful it is to deny two people in love and comitted to share the rest of life togther the same right as other based solely on the couple's gender.

Well until the hypothetical day the pigs come and take away all those gay marrige license from all those gay people we don't have that shame here in Mass.

And that makes me smile. [img]smile.gif[/img]

[Chewbacca]

In case anyone cares at exactly how unequal civil unions are and exactly how unfair the proposed federal constitutional amendment is this article makes some noteworthy points:

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Link

Marriage far outstrips civil unions in benefits

Question: What do marriages offer same-sex couples that civil unions don't?

Answer: There are more than 1,100 federal benefits and protections tied to marriage that are denied to people in civil unions. Here are some of the differences:

• Husbands or wives who survive their spouse are eligible for Social Security benefits, but that is not true of surviving partners of a same-sex relationship.

• U.S. citizens who marry someone from another country may petition for their partner to immigrate, but that is not true of U.S. citizens who enter into a civil union with someone from another country.

• A husband or wife who inherits property from a deceased spouse does not have to pay estate taxes on the property, but that is not true of the surviving partner in a civil union.

• Heterosexual couples who want to get married may do so in any state, and their marriage will be recognized throughout the country. But civil unions are not available in every state and the legal rights attached to such unions are not recognized throughout the country. Only one state — Vermont — grants civil unions to same-sex partners.

Q: At what age can two people legally marry?

A: A man and a woman can marry without parental consent at age 18 in almost every state, according to the Legal Information Institute at Cornell Law School. The exceptions are Mississippi, where boys can marry at age 17 and girls at 15, and Nebraska, where the minimum age is 19.

Girls can marry as young as age 12 in Kansas and Massachusetts with parental consent or permission from a judge. And boys as young as 14 can get married in those states with their parents' permission. Most other states allow children to marry at age 16 or 17 with their parents' approval.

Q: Where else in the world can same-sex couples legally marry?

A: In 2001, the Netherlands became the first country to extend full marriage rights to same-sex couples. Belgium has since passed a similar law. Last year, Ontario and British Columbia became the first Canadian provinces to open up marriage to gays and lesbians.

Beginning May 17, same-sex couples residing in Massachusetts will have the right to marry while lawmakers and voters consider a referendum and a constitutional amendment to ban it. These legal recourses could take two years to complete.

Q: If the Constitution is amended to ban gay marriage, can future generations reverse that decision?

A: The country overturned a constitutional amendment in 1933, when it repealed Prohibition. But sponsors of the Federal Marriage Amendment crafted their measure as the final word on the matter. The proposed amendment specifically states that no constitution — federal or state — shall be later construed to give gays and lesbians the right to marry.

Critics say it's unfair to hog-tie the deliberations of future generations.

Q: Are fewer American children living in a two-parent home?

A: Yes. In 1960, 88% of American children lived in a two-parent home. By the 2000 census, that had dropped to 69%.

In addition, the percentage of children living apart from their biological fathers has doubled since 1960, from 17% to 34%. And the percentage of children living with a single parent has tripled, from 9% to 28%, according to the National Marriage Project, a nonpartisan research institution at Rutgers University.

Q: Are more unmarried American couples choosing to raise children?

A: Yes. The number of unmarried heterosexual couples living with children rose from 197,000 in 1960 to 1.7 million in 2000 — an 850% increase. It's estimated that 40% of American children today will spend some of their childhood in a cohabiting household, according to the National Marriage Project's report, State of Our Unions 2003.

Q: What does President Bush's "Healthy Marriage Initiative" propose?

A: The proposal, part of legislation to renew the 1996 welfare law, would spend $300 million in grant money each year teaching communication skills to people in low-income neighborhoods to reinforce existing marriage education programs.

Participation would be voluntary. The plan is to bolster and offer competitive grants to state and local governments, and to qualifying nongovernment organizations. The welfare bill is currently being debated on Capitol Hill.

[Chewbacca]

Another article with an overveiw of the MA legal battle and some opinion as well:
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Link


Legal wrangling continues in Massachusetts over marriage

By Joanna Grossman, FindLaw Columnist
Special to CNN.com

Tuesday, May 18, 2004 Posted: 11:31 AM EDT (1531 GMT)
(FindLaw) -- This week, May 17, for the first time, same-sex couples legally wed in Massachusetts. Hundreds more will do so as the week progresses. (Full story)

This is a watershed moment in history, and yet it is far from the end of the story. Legal challenges suggesting other states need not recognize these Massachusetts marriages have yet to be resolved. Advocacy to amend the constitution to prohibit such marriages will doubtless continue, and President Bush today reiterated what he calls an "urgent" need for such an amendment.

In addition -- as I will explain -- Massachusetts' governor has invoked an old state law that he claims means out-of-staters cannot enter into same-sex marriages in Massachusetts. But whether this law will prevent out-of-state couples from marrying in Massachusetts, or, perhaps more importantly, invalidate their marriages if they do, remains to be seen.

The legal background in Massachusetts
I discussed the events relating to same-sex marriage in Massachusetts in detail in a prior column -- so I will recap them only briefly here.

In November, the Supreme Judicial Court (SJC) of Massachusetts decided Goodridge v. Department of Public Health. There, it declared the state's ban on same-sex marriage unconstitutional and gave the legislature 180 days to amend its statutes appropriately.

Subsequently, the state Senate solicited an advisory opinion from the Court. It asked if its "separate but equal" civil union bill -- under which same-sex couples would have been entitled to enter into civil unions that would differ from marriage in name only -- would satisfy the Massachusetts constitution.

But the Court, in its answer, said no. It made clear that only full-fledged marriage would meet the state constitution's mandate of equality for all citizens

The state legislature then drafted and passed an amendment to the state's constitution banning same-sex marriages. But under the constitution, that amendment cannot take effect before November 2006. And that meant that between May 17, 2004, and November 2006, gay marriage would be legal in Massachusetts.

A failed federal suit challenges the SJC ruling
Fearing this result, a coalition of conservative legal groups and individual state legislators sued in federal court to try to stop the May 17 weddings. They argued that when the SJC in Goodridge interpreted the Massachusetts Constitution to require equality in marriage, it violated the U.S. Constitution -- which, under the Supremacy Clause, takes precedence.

Why did plaintiffs see a federal constitutional violation here? Because, they argued, the U.S. Constitution guarantees a republican form of government, and that guarantee was violated when the court redefined marriage to include same-sex couples, despite the state legislature's more limited definition.

The federal court, however, refused to grant the injunction. It found a strong likelihood that the SJC -- not the plaintiffs -- would win the suit. In the court's view, Massachusetts' Constitution clearly endows the judicial branch with the authority to decide cases involving marriage and divorce and, if necessary in the course of doing so, to reinterpret the term marriage.

The U.S. Supreme Court declined to review this decision. Appeal to the U.S. Court of Appeals for the First Circuit is still pending.

The governor invokes an archaic law
Meanwhile, about a month ago, Massachusetts Governor Mitt Romney announced plans to enforce provisions of a little-known 1913 state law that could have the effect of limiting same-sex marriage to Massachusetts residents only. If Romney is correct, out-of-staters need not apply, and can be turned away.

These provisions are patterned after the Uniform Marriage Evasion Act (UMEA), enacted in the early twentieth century. (Uniform laws, in general, are drafted by an independent body called the National Conference of Commissioners on Uniform State Laws (NCCUSL). A uniform act has no independent force and effect until it is adopted by a state's legislature, at which time it becomes part of that state's code.)

The idea behind the UMEA was to permit states to insist on strict marriage restrictions, without being undermined by more lenient sister states. UMEA itself no longer exists, though thirteen states and the District of Columbia retain some version of it in their codes. NCCUSL withdrew support for the Act in the Uniform Marriage and Divorce Act (UMDA).

Section 210 of the UMDA follows a strict version of the place-of-celebration rule, a common law principle that marriages should be valid everywhere as long as they were valid where celebrated. That standard gives states the opportunity to set their own standards for marriage, while ensuring that those who do marry obtain a meaningful, portable status.

But Massachusetts law never adopted the more modern UMDA. It retains the provisions from the original UMEA. And that Act says, in pertinent part, that a state shall not license marriages by non-residents if the marriage would be void if contracted in their home state. And to enforce this rule, it requires officials issuing licenses to obtain proof that a non-resident applicant would also have been permitted in his own state.

As long as no state except Massachusetts allows gay marriage, these provisions seem to imply out-of-staters are out of luck: They cannot marry in Massachusetts (unless, of course, these provisions are struck down as violating the state or federal constitution.)

Thus, Gov. Romney has instructed state officials that they must ask for proof of residency from those filing a "Notice of Intention" to marry, and state forms have been rewritten to require that applicants swear to their current residence and intended future residence, and to include a place for the clerk to list the proof of residence reviewed, and to sign as an indication of its sufficiency. (However, at least three Massachusetts communities have stated their intent to issue certificates to anyone who meets the other criteria?regardless of residency status.)

Gov. Romney also sent a letter to the governor and attorney general in each state, asking that they inform him if same-sex marriage is not prohibited in their states. Otherwise, the letter explained, he will assume such marriages are not allowed, and residents of those states will not be permitted to marry in Massachusetts either.

Most states ignored the letter -- no doubt in part because more than forty of them have explicit statutes on the books either banning same-sex marriage, or stating that a same-sex marriage from another state will not be recognized. But the Attorney General of New York, Eliot Spitzer, offered an interesting response.

Spitzer enclosed, with a polite cover letter, a March 2004 legal opinion he had issued. There, he concluded that New York statutes, as currently written, do not permit same-sex couples to marry. But he also alluded to the possibility that a court might well find that the statutory scheme was unconstitutional, on grounds similar to those used in Massachusetts. In addition, Spitzer concluded that same-sex marriages should be given full force and effect in New York so long as they were valid in the state where they were performed. (Late yesterday, Rhode Island's Attorney General issued a very similar opinion, while Connecticut's declined to answer the recognition question.)

So can New York same-sex couples marry in Massachusetts, and have their marriages recognized back in New York? It's a conundrum. Assuming Spitzer's view of what New York courts will say is correct, then the law in New York is that such marriages will be recognized if valid in Massachusetts. Yet Massachusetts' Marriage Evasion laws say they will only be recognized if they are permitted in New York.

This creates a chicken/egg problem. Or, to use another metaphor, both states have punted. So New York same-sex couples may want to try their luck in Massachusetts -- but unfortunately, there's no guarantee they won't be turned away.

Future problems for out-of-state couples
Worse still, couples may be allowed to marry, but return home to find their certificate useless when they try to claim important rights relating to insurance, taxes, adoption, inheritance, and so on.

Out-of-state same-sex couples who entered into Vermont Civil Unions have faced just this type of difficulty when they have returned to their home states. Indeed, as I discussed in another column, some have not been even able to divorce without returning to -- and, for a time, residing in -- Vermont.

New York has one case recognizing a Vermont Civil Union for purposes of a wrongful death suit. But even if that opinion withstands appeal, it may not apply equally to Massachusetts' marriages. After all, a New York couple who successfully marry in Massachusetts, despite being non-residents, run the risk that a court will rule the marriage was not "validly performed" where celebrated. With such a ruling, the basis for granting sister-state recognition would disappear.

The state should drop its evasion laws
Massachusetts law needs an update. It is ironic, at best, and tragic, at worst, for the state to be at the forefront of a movement on the one hand, and yet also to be constrained by such an archaic law. The modern, sensible Uniform Marriage and Divorce Act, not the outmoded Uniform Marriage Evasion Act, ought to be reflected in Massachusetts law.

The practical complications of non-uniform marriage laws are real. Yet there are many ways to solve them. One is having a federal constitutional amendment defining marriage (though that may be struck down as infringing on the states' prerogative). But a better one is to return to the straightforward place-of-celebration rule, which means that states must give effect to any legal relationship valid where celebrated.

Same-sex marriage is a legal area where the states can have it all: individuality (the right to grant greater rights than other states), comity (respect for each other's laws), and equality, too.


Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University.