Sometimes The Hive Mind Is Stupid

Massachusetts has a law, dating from 1913, that people from out-of-state cannot get married in Massachusetts if their state of residence would not let them get married. Although I'm sure that this effects cousins or people with some other degree of consanguinity that may legally marry in Massachusetts but not in their own state, the statute almost certainly was passed due to concerns about miscegenation. It was, when passed, a bad law.

But now it has a new purpose: it stops same-sex couples from other states from coming into Massachusetts and getting married and then trying to have that marriage recognized in their own state, in effect exporting same-sex marriage. The Commonwealth has been pretty good about enforcing the statute and out-of-state couples have been denied marriage licenses in Massachusetts. Until today.

Today, the Massachusetts trial court held that two women from Rhode Island can get married in Massachusetts because the Massachusetts trial court couldn't find any Rhode Island law banning same-sex marriage. There can be no doubt that this is result oriented judging combined with willful blindness. In fact, I'm pretty sure that it is wrong as a matter of Massachusetts law and will be overturned on appeal. Remember that in the Goodridge case (instituting same-sex marriage) the same argument was made about Massachusetts law and the court rejected it. The word "marriage," said the court, means the joining of a man and a woman and necessarily excluded same-sex couples. The court went on to hold that the law excluding same-sex couples, by use of the word "marriage," violated the Massachusetts' constitution, but the will not make that decision for Rhode Island.

So, you ask yourself, if this case is not likely to survive the appellate process, why am I bothering to write about it?

Because the Goodridge decision, while good news for Ms. Goodridge and her wife (though they've since started divorce proceedings) was terrible news for the gay marriage movement and the Democratic Party. A court doing what we were always told a court would never do galvanized the right into sponsoring state referenda on gay marriage, the referenda drew voters like flies, and while they were there they voted for Republicans. Still, we were told that this was an unnecessary over-reaction. No other state was going to be forced to recognize gay marriage because of Massachusetts' decision. Now we see that there can be no assurance on that point either: is anyone 100% certain that a couple, validly married in Massachusetts, will be held to be unmarried by a Rhode Island court?

How much damage to the gay-marriage movement and the Democratic Party will be done by a clear example of a Massachusetts court going out of its way to try to spread gay marriage to Rhode Island? If given their druthers, is there any question that the movement generally and the Democratic Party specifically would wish that this hadn't come up five weeks before the election.