Hey, Remember Gay Marriage? It's Still Being Fought Over in Court

Thank goodness! Another update in Bostonist's favorite ongoing story, the neverending battle over gay marriage: The Supreme Judicial Court yesterday heard oral arguments in a challenge to a 1913 law being used by state government to deny marriage licenses to out-of-state gay couples who do not intend to move to Massachusetts. Bostonist is enjoying this subset of the gay marriage debate because it makes clear just how similar today's opposition to same-sex nuptials is to yesteryear's opposition to mixed-race marriages.

The law in question prohibits the issuance of marriage licenses to people who would not be qualified to marry in their home state, and was adopted when Massachusetts allowed interracial marriage but didn't want to ruffle the feathers of its more (overtly) racist sister states. (Well, the Attorney General's representative argued yesterday that the law wasn't adopted for this purpose, but everything Bostonist has read on the matter suggests it was.) What's curious, though, is that our state has been glad to ignore the legal demands of other states in the past, when these didn't fit with our conception of fundamental rights. In 1855, for example, after the United States Congress passed a fugitive slave law that practically obligated free states to return escaped slaves to the South, our legislature passed a law granting escaped slaves full procedural rights and making it functionally impossible for slave owners to take them back.

A friend who attended the arguments yesterday told Bostonist that the couples challenging the law seemed to be pressing the theory that the law was only being applied to gay couples and not to others who might be disqualified in their home states (say, for being too young). But, our friend said, the Justices didn't seem to buy this argument, making the couples' position seem a little weaker. Bostonist has to wonder why the couples don't simply argue that when it comes to fundamental rights (since that's what the SJC decision permitting gay marriage was all about), what other states think doesn't really matter as far as what we do. Obviously, the marriage licenses issued in the Commonwealth won't be worth much back in Alabama, but what do we care? After all, the legislatures of other states frequently can't be trusted: Virginia only got rid of its ban on interracial marriage in the late 1960s (and only because the U.S. Supreme Court required it), and the Indiana legislature is currently trying to make it illegal for unmarried women to become pregnant by artificial insemination (!). And if the marriage licenses our state issues are really just a first step in a campaign of lawsuits designed to nationalize gay marriage (as another lawyer friend of Bostonist surmises, although Bostonist has doubts about how well that would work), so be it. We're already looked upon by most of the country as a funny-accented thorn in the side of the Bush Administration; we might as well embrace it.