Eyes on Statehouse, Reilly Charts Curious Gay Marriage Course

Remember when the SJC ruling allowing gay marriage was still brand new, and the Governor wanted to use some legal procedures to keep it from going into effect, but Attorney General Tom Reilly refused to play along, saying that the court's decision was the law and it had to be respected? "How principled," Bostonist thought to ourself at the time, "Reilly is admittedly against gay marriage, but he respects the role of the courts in interpreting the state constitution and has the integrity not to fight a policy battle masquerading as a legitimate legal action." It touched our little pro-gay marriage heart, much in the way (we imagine) that civil rights supporters in the 1960s must have been touched when President Johnson, whose personal views on race were not so enlightened, nevertheless threw his weight behind the Civil Rights Act.

Of course, there was a cynical part of our brain that kept whispering, "Silly Bostonist! This is not principle, this is politics: When Mitt wants something, Tom Reilly will not give it to him, it's as simple as that. The fact that this lets Reilly half-heartedly defend gay marriage is but a happy accident. Just you wait - Reilly will sell Jarrett Barrios down the river for three extra votes in Bristol County when the time comes." We tried to ignore this voice (not least of all because the voices in our brain tend to have thick Brooklyn accents and pronounce "oyster" as "erster"), and when Reilly went on record opposing the constitutional amendment to ban gay marriage, we felt confident banishing that voice to the same dusty attic of our psyche where our passing interest in professional hockey currently resides. But as of Friday, the voice has burst forth in all its obnoxious, truth-telling glory, rubbing the nose of the rest of our brain in Reilly's current, curious position: That even though marriage is a fundamental right that may not constitutionally be denied to anyone on the basis of sexual orientation, it's totally OK to deny that right to people from out of state.

Reilly maintains that even though same-sex marriages are constitutionally protected, the state can still enforce a 1913 law that prohibits the issuing of marriage licenses to out-of-state residents if their home states wouldn't recognize the marriage. Why? Because, says the AG, Massachusetts must respect other states' definitions of marriage. That means that if Virginia went back to its pre-1967 definition of marriage, an interracial couple from Richmond could not have their dream wedding on the Cape, because Virginia prohibited marriage between black and white people, and Massachusetts would (according to Tom) have to respect that.

So the issue really is, if a law is valid in another state, but would be unconstitutional if enacted in Massachusetts, do Mass. authorities have to respect that law? Bostonist doesn't think this is a difficult legal question - after all, Mass. courts long ago decided to recognize the marriages of runaway slaves, even when those marriages were expressly forbidden by the laws of the states from which the newlyweds had fled. This makes Reilly's decision to keep defending the 1913 law seem to us like a transparent attempt to play both sides of a contentious issue. Lucky for him, his would-be opponent in the governor's race has also lately developed something of a reputation for flipping and flopping.