Judge Marshall’s Latest Gay Marriage Decision Creates Hopeless Contradictions
Nullifies Thousands of Gay Marriages---and Possibly Heterosexual As Well
       Massachusetts Chief Justice Margaret Marshall did in one stroke of her pen what pro-family groups in the state have been fervently trying to do for years, roll back her 2003 same-sex marriage decision and nullify a significant number of marriages involving gay couples, and in the process, possibly nullify many marriages for heterosexual couples as well.
       As Associate Justice Martha Sosman said when she challenged the Chief Justice in 2003: “[Marshall] assumes that discrimination on the basis of sexual orientation is prohibited by our Constitution.” Sosman said that Marshall was unable to give a rational reason for her decision and that Marshall’s explanations “ring hollow.”
       Last Thursday, in a 6-1 decision, Marshall’s court ruled that out-of-state couples who live in states that ban gay marriage do not have an “unfettered right” to marry in Massachusetts. This is in stark contrast to Marshall’s position in the original Goodridge decision. It made freedom to choose who one wanted to marry a fundamental “civil right” that is “protected against unwarranted State interference” and was frequently paralleled to the right of inter-racial couples to marry.
       In the original decision in 2003, Marshall completely ignored the out-of-state prohibitions in the Massachusetts General Laws regulating marriage, and instead, suggested that every other state was just going to have to deal with her decision on their own. She said:
       ”We also reject the argument suggested by the department, and elaborated by some amici, that expanding the institution of civil marriage in Massachusetts to include same-sex couples will lead to interstate conflict. We would not presume to dictate how another State should respond to today's decision.”
       On the day that the Goodridge decision was enacted, the “interstate conflict” she claimed wouldn’t happen began, when hundreds of gay couples from various parts of the country applied for marriage licenses. In some areas, over one-third of all the applicants were noted to be from out-of-state. Some of the applicants were so bold as to tell the New York Times/ Boston Globe conglomerate, the prime advocate of gay marriage in this country, that their intention was to return to their home state after being granted a license and use their new marital status to challenge their own state’s laws.
       Retreating from her supercilious position in Goodridge, Marshall stated in last Thursday's decision that: “The Commonwealth also has a significant interest in NOT meddling in matters in which another State, the one where a couple actually resides, has a paramount interest.” (Emphasis added)
       ”The SJC seems to be completely confused on this issue,” Atty. J. Edward Pawlick commented. “They’re going to have a terrible time trying to figure out who is married, and who is not. This is a far bigger mess than any of them could have counted on.”

Marriages Nullified
       Since there is no tally of who is from out-of-state and who is not, it is nearly impossible to say how many marriages are to be nullified by this decision. It has been noted numerous times by reporters that a large number of those first married in May of 2004 were not Massachusetts residents.
       Furthermore, many of the out-of-state couples were married just before the “2004 backlash” when states all over the country added amendments banning same-sex marriage.
       When the University of Massachusetts released a study on the economics of gay marriage in Massachusetts in 2004, their research led them to assume that the majority of same-sex marriages were from out-of-state couples. Taking some of the most conservative estimates, many believe last Thursday’s decision nullified some 1,000 same-sex marriages.

Hypocrisy Cited
       Judge Ireland, the lone dissenting voice in last Thursday’s decision and the only African-American on the SJC, had harsh comments for the majority.
       Ireland is a firm believer in the concept that same-sex marriage is an inalienable right. He pointed out that the majority decision essentially subordinates fundamental rights guaranteed by the state constitution, to what could be discriminatory laws in other states. He stated that the decision had the effect of “import(ing) the discriminatory laws of other States into our marriage statute, …we would fare much better by interpreting our own marriage statutes, rather than wading into the complexities of the marriage laws and public policies of other States.”
       He also cited the fact that there is precedent in Massachusetts, with respect to civil rights, to extend the liberties afforded here to non-resident visitors. In particular, he cited an 1836 Massachusetts case where a young woman from Louisiana arrived in Massachusetts with her slave, and despite both the federal government and the State of Louisiana recognizing slavery, the slave was granted freedom as a basic human right incumbent upon anyone within the boundaries of this state. Ireland said in his dissent last Thursday that:
       ”The [1836] case established the principle that a liberty or right under the Constitution of Massachusetts that is available to citizens of Massachusetts, can be extended to others who travel here from other States, regardless whether their home States deny them those same rights.”