Massachusetts Marriage Migration Made Mandatory

Julian Sanchez | March 30, 2006

SCOTUSBlog has typically thorough analysis of today's ruling in Massachusetts' highest court that couples from other states—that means same-sex couples here—may not marry in the People's Republic if their unions wouldn't be allowed in the states in which they live. So, prospective gay newlyweds, better start practicing your Hahvahd lockjaw.

Comments

|3.30.06 @ 6:59PM|#

That's federalism for ya.

If your home state didn't recognize the contract, then, um, what would be the point of getting married there anyway? Just to say that you're "married", even though said marraige is not recognized anywhere but Taxachussetts? Excuse me for being so blunt, but, how insecure do you gotta be? If the fuckin things carry no legal weight in the state in which you live your life, then, it's meaningless anyway.

Having said that, I have to wonder why the Taxachussetts Supreme Court is so worried about people coming to their state to get these meaningless contracts issued. How does it hurt them? If anything, it just brings more tourism your way.

SCOTUS Blog says, "This differing treatment, the state court said, works to "promote interstate harmony by mandating respect for the laws of other jurisdictions."

What? Interstate "harmony"? What the fuck is that supposed to mean? I issue a contract in my state. Doesn't mean any other state has to recognize it. So who the fuck cares? I can make a t-shirt that says that I have a genius IQ. Doesn't mean anyone will be forced to believe it that doesn't want to. So why prohibit me from making said claim?

|3.30.06 @ 7:16PM|#

Why are some conservative evangelicals so hung up over gay marriage? Because to them, religious freedom means they're free to establish morality for us all.

In Rejecting Christianity Will Society Re-Define Marriage?
Believe it or not, there are actually high-level officials in many denominations who are supporting the change to allow two men or two women to be married. Have they not read the Bible? Of course they have read it. They simply don't believe it. They believe their way is better . . . All of this, of course, goes back to the standard on which a person (or a nation) chooses to base the concept of good and evil, right and wrong. There is truth, and there is relativism. Truth is constant. Relativism is something subject to change as the latest fad comes along.

Larry A|3.30.06 @ 7:24PM|#

"This differing treatment, the state court said, works to "promote interstate harmony by mandating respect for the laws of other jurisdictions."

Let me know when Massachussetts recognizes my Texas concealed handgun license, or those of the other 46 states that have them. (Kansas and Nebraska having just passed concealed handgun license laws.)

|3.30.06 @ 7:25PM|#

There is an easy way to solve this, very libertarian, not very popular though. Get the government out of 'marriage'. Allow anybody to enter into a 'social contract' with another person or persons. Signed, notarized, fee for filing, done.

If a person needs to get 'married' in the eyes of the Lord then they can go to thier respective religious establishments and have the whole shebang including rice and doves. The 'social contract' is still the same and is just a legally biding contract between consenting individuals.

lunchstealer|3.30.06 @ 7:31PM|#

Copouts. Actually, Doesn't this violate the 14th Amendment?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Wouldn't this then say that they couldn't refuse any citizen the right to marry under their state's laws?

Evan,

Think of Vegas marriages. All the 'spur of the moment' Vegas marriages would be unlawful in many states, since they did not go through the full processes required in those states, some including blood tests and waiting periods. However, due to the 'Full Faith and Credit' clause, those Vegas marriages are valid in all 50 states. If those shotgun Vegas weddings* are valid, then ALL out-of-state weddings must be valid. That's going to include same-sex marriages from Massechusets.

* I realize I'm misusing the term 'shotgun wedding' but bear with me

Not David|3.30.06 @ 7:59PM|#

I realize I'm misusing the term 'shotgun wedding'

Indeed. Gun laws in Massachusetts would never permit such a thing.

|3.30.06 @ 8:29PM|#

Larry A.: You forgot Vermont, where the only gun carrying legislation is a constitutional acknowledgement of the true meaning of the US 2nd Amendment - sort of, as even Vermont will look sideways at you if you try to carry your Bushmaster to work.

Lunchstealer: What 14th Amendment to what Constitution? Libertarians appear to be the the last remnant of the population that actually understand the US Contitution & Bill of Rights "meaning". {Funny part is that hard-core "destroy all government" Anarcho-Capitalists are better versed in Constitutional Studies than most D&P party members.} Demoblicans & Repucrats grand leaders have that stamp etched Void-where-Prohibited-by-Law.

My idea parralells Kwix's: Get the government completely out of marriage. End the Marriage Bonus & Penalties in the Tax Code, end the overt & tacit discrimination against unmarried couples, irregardless of genders, by insurers, healthcare services, and especially: City, County/Parish, State, Federal agencies.

lunchstealer|3.30.06 @ 8:36PM|#

Sphynx, I'm with you and Kwix on most things, but there are a few circumstances where some government recognition of marriage is necessary.

The biggest right now that I can think of is cross-border romance. If you marry a foreigner, they can get (usually) a visa. If gays are excluded from marriage, they're excluded from this arena. Of course, you could always just remove immigration restrictions, to get around that, so there's a libertarian solution that doesn't require marriage law, but its still worth pondering.

|3.30.06 @ 9:02PM|#

Rhamton,

"Our society has a new definition of God and love. In the past we saw truth in the definition that God is love. For centuries we have operated on that basis. But now, not satisfied with the restrictions that old definition imposes on us, we have turned the wording around. No longer is God love, but now love is god."

Hah! Ha ha ha ha! I really love warmed over rip-offs of bad arguments by C.S. Lewis. Of course this twat's logic need not be considered.

dhex|3.30.06 @ 11:12PM|#

well, it's going to happen whether he likes it or not, at least in some places.

|3.30.06 @ 11:34PM|#

Why is the government anywhere issuing marriage licenses to anyone? How does this add value? Why can't (two or more) consenting adults simply declare they are married, and announce it to any registry they want to?

Once upon a time this used to be the purview of organized religion. It still can be, with individuals choosing to abide by their church's (or other religious body) rules for marriage. If they don't like the option of getting sanctioned by a religious body they don't have to, they can go the non-religious, non-government civil route if they want to, in essence drawing up their own prenuptial agreement of what happens if maritial bliss turns to non-bliss and they decide to call it splits. Or for that matter, not drawing up such an agreement, and taking their chances with a judge or jury's arbitrary ruling upon splitsville.

Libertarians should be opposed to pretty much all government mandated licensing, including marriages.

|3.30.06 @ 11:42PM|#

lunchstealer,

You are correct in my opinion that the US government will still have to have an immigration rule regarding marriage partners in an unlicensed marriage market. So be it. If we don't like the way the government makes those rules, we can try to vote in new government. This does not mean we need an extra layer of government issuing marriage licenses though, which does nothing to resolve the issue really.

|3.31.06 @ 7:53AM|#

Rhampton,

"There is truth, and there is relativism. Truth is constant. Relativism is something subject to change as the latest fad comes along."

"Truth"? And tell me, who here knows that "truth" about interpersonal relationships?

Relativity IS truth. That is NOT subject to change.


Larry,

"Let me know when Massachussetts recognizes my Texas concealed handgun license, or those of the other 46 states that have them."

Oh, they recognize your guns, alright - they recognize them every time some Texas gun shows up in the dumpster behind a murder scene.

Kwix,


How's about we just usurp the word "marriage"? What? Do you think Judeo-Christian invented the institution?

Lunchstealer,

"Actually, Doesn't this violate the 14th Amendment?"

It also violates the commerce clause. Yes.

Happyjuggler,

"Libertarians should be opposed to pretty much all government mandated licensing, including marriages."

There are vital legal reason why marriage is a state institution - ranging from custody issues, estate management, etc. What you're talking about is anarchic - not libertarian.

F Le Mur,

"The "one size fits all" socio-legal contract of marriage is Judeo-Christian-based,"

No, it�s not. What planet do you live on? Do you think prior to Moses the Chinese had no marriages? The Indians? The Malays? C'mon man!

JMJ

|3.31.06 @ 8:42AM|#

"There are vital legal reason why marriage is a state institution - ranging from custody issues, estate management, etc. What you're talking about is anarchic - not libertarian."

A system of private contracts between consenting adults is certainly not anarchy, Jers. "Custody issues, estate management, etc." could all be taken care of via private contracts.

But, as we all know, it scares the shit out of populiberals when private parties are allowed to consensually enter into contracts without the state being involved.

|3.31.06 @ 8:53AM|#

Evan,

The institution of marraige has a lot more to it than just customizable interpersonal legal contracts. It is in the interest of the state to support and sanction marraige as positive and recognized, reinforced and put on a pedestal.

If anything, I think most of us would agree that pre-nups and contracts are sure fire disaster areas - considered tacky at best, dooming any marraige at worst.

This isn't just for the state - it's for the people marrying.

JMJ

|3.31.06 @ 9:39AM|#

It is in the interest of the state to support and sanction marraige as positive and recognized, reinforced and put on a pedestal.

Why?

I think most of us would agree that pre-nups and contracts are sure fire disaster areas - considered tacky at best, dooming any marraige at worst.

How so?

Chris Wuestefeld|3.31.06 @ 9:51AM|#

How ironic, then, that the Liberals in support of gay marriages were arguing against the principles that allow them to force victim disarmament in other states.

(poor man's trackback to my comments)

|3.31.06 @ 10:19AM|#

Jennifer,

I can only speak anecdotally about the negative effects of pre-nups, but from everything I've seen and heard, they are regrettable agreements. I don't know how you missed that. It's common knowledge.

As for why marriage should be of interest to the state - just look up any study on: child rearing, home ownership, workplace productivity and reliability, personal consumer debt, crime, stress and health issues - and you tell me.

(By the way - a female libertarian, huh? Fascinating!)

JMJ

|3.31.06 @ 10:27AM|#

I can only speak anecdotally about the negative effects of pre-nups, but from everything I've seen and heard, they are regrettable agreements. I don't know how you missed that. It's common knowledge.

Are you capable of answering my question with something less vague than "Hey, uh, it's common knowledge?" Tell me what you've seen and heard that makes them so regrettable.

As for why marriage should be of interest to the state - just look up any study on: child rearing, home ownership, workplace productivity and reliability, personal consumer debt, crime, stress and health issues - and you tell me.

No--you're the one claiming the state should "put marriage on a pedestal", so you tell me why this should be the case. What's the difference between two people who register their monogamous sexual agreement with the government versus two people who stay together simply because they love each other, not because there's too much paperwork involved in splitting up?

|3.31.06 @ 10:40AM|#

Also, concerning "workplace productivity" (not that I think THAT is something the state should be meddling in)--married people with children are more likely to take time off work to care for a sick spouse or sick kids. If the state should put a certain class of people "on a pedestal" in order to enhance workplace productivity, then childfree singles are the ones who should be getting special treatment.

|3.31.06 @ 11:01AM|#

Jennifer,

"Are you capable of answering my question with something less vague than "Hey, uh, it's common knowledge?" Tell me what you've seen and heard that makes them so regrettable."

Like I said, I just don't know much about it other than the horrendous celebrity marriages and divorces with which pre-nups are often involved. Sorry, I just don't know much more beyond that (I don't think you can find out much because most of these agreements are private, so it�s hard to attach specific causes and effects).

As for why marriage should be of interest to the state - just look up any study on: child rearing, home ownership, workplace productivity and reliability, personal consumer debt, crime, stress and health issues - and you tell me.

"No--you're the one claiming the state should "put marriage on a pedestal", so you tell me why this should be the case. What's the difference between two people who register their monogamous sexual agreement with the government versus two people who stay together simply because they love each other, not because there's too much paperwork involved in splitting up?"

Look, Jennifer, marriage is an institution - a group - a social class. You can reinvent it if you want, but when I look back at other social institutions reinvented by Americans in the past few generations, all I can say is - Please, God, just leave it alone! You can add more people to it, but please don't take it away. The last thing we need is even more selfish, nasty, me-ism, individualism in America.

JMJ

|3.31.06 @ 11:05AM|#

Jennifer,

"Also, concerning "workplace productivity" (not that I think THAT is something the state should be meddling in)--married people with children are more likely to take time off work to care for a sick spouse or sick kids. If the state should put a certain class of people "on a pedestal" in order to enhance workplace productivity, then childfree singles are the ones who should be getting special treatment."

I dare you to try to prove that utterly laughable theory. I double dog dare you. There's no way in hell that single people are more reliable workers, be it involving atendence or anything else, than married people. You'd have to be nuts to believe otherwise.

JMJ

|3.31.06 @ 11:10AM|#

Like I said, I just don't know much about it other than the horrendous celebrity marriages and divorces with which pre-nups are often involved.

So you made that statement based on the assumption that Hollywood celebrities are the American norm?

Look, Jennifer, marriage is an institution - a group - a social class. You can reinvent it if you want, but when I look back at other social institutions reinvented by Americans in the past few generations, all I can say is - Please, God, just leave it alone! You can add more people to it, but please don't take it away. The last thing we need is even more selfish, nasty, me-ism, individualism in America.

Saying "marriage is an institution" does not answer the question "Why should government put marriage on a pedestal". And nobody here is talking about making marriage "go away"; we're talking about getting the government out of it.

If two people decide to spend their lives together, why do they have to register this fact with the government? Or, more specifically: why is it the government's business who I love and live with?

|3.31.06 @ 11:14AM|#

I dare you to try to prove that utterly laughable theory. I double dog dare you. There's no way in hell that single people are more reliable workers, be it involving atendence or anything else, than married people. You'd have to be nuts to believe otherwise.

You're doing the same thing you did in that gun thread--operating on the assumption that your say-so is all the proof anybody needs. Where are your statistics proving the greater reliability of married people?

Another question--if you can prove your point based on anecdotal evidence gleaned from tabloid stories about the marital problems of celebrities, why can't I prove my point based on anecdotal evidence based on places I've actually worked? The number of times my ex-colleague took days off to care for her sick kids or drive her husband to the airport was much greater than the number of times I took days off to care for my own self when I got sick.

|3.31.06 @ 11:28AM|#

Walter Block did study this, and he found that married women tended to be far less productive than single women.

It turns out that there is a sexist cultural aspect to this; women, as a group, tend to place a higher priority on supporting their families than married men.

In fact, the entire wage gap between men and women correlated with marriage, in other words thre was no wage gap between men and unmarried women (with ezuivalent experience and working in the same profession)

I don't know it there is a link to the study on the web. The source of the data was Canadian Labor Dept, and the study was done in the 1980's.

Make of it what you will

|3.31.06 @ 12:23PM|#

I'm not sure what the point is with arguing with someone who claims to be a civil libertarian while also being against both the first amendment and the second amendment, and against other amendments to be named later. Not to mention that someone who claims to be a civil libertarian is presumably an economic statist of they would simply leave off the "civil", but that is another can of worms. In this day and age of "big government for everyone, everywhere, especially for the children", I'll take what I can get.

However, I will simply say that using celebrity pre-nups as a basis for deciding anything is shortsighted, to say the least. Celebrities, or at least famous actors, break up all the time because they are nuts. I realize that is a generalization, and there are probably many actors who have their heads screwed on pretty normally and don't have all kinds of neuroses (sic?), but I am going by what they say about actors.

There is also the fact that they go to farflung places with incredibly attractive members of the opposite sex, where they play a role that says they have the hots for each other, and then they are expected to be non-sexual (i.e. not get laid) for months on end. I have a rule of thumb that most people are basically honest, but that they are more honest when you don't put temptation in their way. Well, actors (male or female) on location have lots of temptation.

Some of them don't cheat, some do. It should not be a surprise that it happens, or that partners who don't see each other for a couple of periods of months each year find themselves drifting apart instead of growing together.

|3.31.06 @ 12:24PM|#

Damn, gotta get rid of that karmic that I put in there in another thread in a subtle spellcheck for someone who typed carmic.

|3.31.06 @ 1:14PM|#

Nice try Jen,

"Where are your statistics proving the greater reliability of married people?"

http://bostonworks.boston.com/globe/out_field/archive/082805.shtml

http://ideas.repec.org/p/nbr/nberwo/5626.html

Here's a couple...

"Another question--if you can prove your point based on anecdotal evidence gleaned from tabloid stories about the marital problems of celebrities, why can't I prove my point based on anecdotal evidence based on places I've actually worked?"

As I said, most pre-nups are private and sealed, so the evidence is not there.

JMJ

|3.31.06 @ 1:23PM|#

Jersey, that first link you had said married people are happier in their jobs; happiness is not the same thing as productivity. Your second link talked about wage differentials, which is also not the same thing as productivity. Care to try again?

|3.31.06 @ 1:39PM|#

As I said, most pre-nups are private and sealed, so the evidence is not there.

Yet despite the lack of evidence, you'll assume that they will prove your point that pre-nups are bad, because Hollywood celebrities get divorced a lot.

|3.31.06 @ 1:51PM|#

Based on JMJ's line of thinking, I'm going to announce here that men should not become fathers, because fatherhood makes men either irresponsible or batshit insane. I have no actual proof of this, since medical records of the insane are generally kept private, but I am basing this on my observations of Kevin Federline and Tom Cruise, whom I'll assume are representative of American men in general.

Also, based on Mia Farrow and Angelina Jolie, I'm assuming there's a huge problem with Americans adopting foreign kids by the dozen.

|3.31.06 @ 2:03PM|#

Yeah, but it took me all of about 5 minutes to find those. I'm sure I could find more if I had more time. Also, both those stats would obviously correspond to productivity.

As for the pre-nup thing, all any of us can do is speculate based on anecdotes in the popular press.

I'll say this though - if a woman wanted me to sign a pre-nup, she'd wake up alone the next morning. It's creepy.

In this case, I think you know this, and are arguing for the hell of it.

JMJ

|3.31.06 @ 2:05PM|#

Yeah, but it took me all of about 5 minutes to find those. I'm sure I could find more if I had more time. Also, both those stats would obviously correspond to productivity.

Once again, you think that putting the word "obvious" in front of your opinion makes it a fact.

As for the pre-nup thing, all any of us can do is speculate based on anecdotes in the popular press.

Speculate all you want, but stop pretending that your speculations are actually facts.

|3.31.06 @ 2:37PM|#

Jersey,
I am going to assume that you have never been married. In Florida (where I was married 5 years ago) we had to read and sign a pamphlet handed to us by the Clerk of Courts that summed up the state's roll in marriage and explained why there was a 72 hour waiting period. I can sum that pamphlet up in two sentences:
"Marriage is a legally binding economic contract between a man and a woman. Stay married or you will pay for it in hard earned cash."

|3.31.06 @ 3:35PM|#

How's about we just usurp the word "marriage"? What? Do you think Judeo-Christian invented the institution?
I never said anything about Judeo-Christian other than my "married in the eyes of the Lord" which I specifically chose because, as you are well aware, the majority of the citizens of this country are of the Abrahamic religions.

Do you think prior to Moses the Chinese had no marriages? The Indians? The Malays? C'mon man!
For most of history 'marriage' was a social contract based on economics, not love as it is today. Mr. F. LeMur's assertion that the modern U.S. Government's definition of marriage indeed is conforming to the traditional Judeo-Christian (especially the Christian) ideology is correct.

Historically polygamy(polygyny or polyandry) was common. The reason for this was not one of love but one of economics. Islamic Sharia decrees that a man has a responsibilty to care for the economic well being of the wife of his brother should his brother die. This is commonly done by marrying the widow even if one already has a wife or three. Historically Judeism has supported the same idea. In sub-Sahran Africa tradional tribes practiced polygyny as a show of wealth. In Ancient Greece and Rome homosexual relationships was allowed and in some cases preferred but marriage was always for economic reasons. The change in Roman attitudes towards homosexuality from one of tolerance to one of oppression occured when Emperor Constintine decreed that Rome was to become a Christian nation.

Now for the kicker. The States did not become involved in issuing marriage licenses until the abolitionist period around the middle of the 1800's. The reason for issuing these licenses was to insure that Black men did not marry White women against state law. The clerk in effect acted as the 'gatekeeper' to lawful marriage.

In no way should the state have any vested intrest in marriage. Child support is child support regardless of marriage status thanks to the joy of DNA testing. Alimony or other financial support (the only other portion of divorce law) can easily be taken care of by a pre-nuptual contract. The only reason a state would have for supporting or denying a union of individuals is to control them.

Sources:(http:// removed due to link catcher)
marriage.about.com/cs/generalhistory/a/marriagehistory.htm
hnn.us/articles/21319.html
hnn.us/articles/4708.html

|3.31.06 @ 6:50PM|#

I didn't think it was possible to be both anti-gay marriage and anti-gun. The wonders of Hit and Run never cease to amaze me.

|3.31.06 @ 7:51PM|#

"Maybe not - homosexuals are as free as heterosexuals to marry someone of the opposite sex."

http://www.idrewthis.org/2006/equality.png

Robert|4.1.06 @ 11:45PM|#

Kwix wrote: "There is an easy way to solve this, very libertarian, not very popular though. Get the government out of 'marriage'. Allow anybody to enter into a 'social contract' with another person or persons. Signed, notarized, fee for filing, done."

That's a popular misconception among libertarians. As long as gov't has a judiciary fx, there is no way to keep gov't out of marriage. Whether a person is a spouse, or married, is a question of fact that needs to be decided in disputes involving contracts with 3rd parties (such as insurance cos.), not just between the spouses. And the words "spouse", "married", etc. have a customary meaning that gov't ought not attempt to redefine by legislation or judicial fiat. It'd be like abolishing the customary meaning of terms like "dollar", "pound", etc., thereby allowing banks to inflate and interfering with contracts for payment.

Marriage licensure, however, did not begin in the USA, but in England, where it was adopted as a measure against clandestine and fraudulent marriages. And although it may have had racist reasons for initially being adopted in the USA, that doesn't explain how it spread to so many other countries. Still, I could easily see marriage licensure being dropped as a state fx (as could land registr'n), without having any effect on the question of whether couples of the same sex be considered married to each other, for that question is one of fact, not law.

Polygamy is a separate issue. It is best seen as a condition of a person's having more than one marriage simultaneously, which does no harm to the concept of marriage. Laws against polygamy and interracial marriage are regulations of marriage, not attempts to define it, and hence can be done away with without harming contract law.