Gay Rights: Still Not Great.

Massachusetts’s Supreme Judicial Court found today that the Bay State can’t award marriage licenses to out-of-state same-sex couples. It is a sad day for the gay rights movement, but I think the court’s decision is completely unsurprising. It just points out the obvious, which is that until the nation as a whole comes to its senses and realizes that gay marriage is deserving of the same respect and legal recognition as straight marriage we’re all kind of screwed.

Anyway, here’s an annotated version of the story (my thoughts in bold italics):

Court: Gays Can’t Come to Mass. to Marry
BOSTON — In a disappointment for the gay rights movement, the state’s highest court ruled Thursday that same-sex couples from states where gay marriage is prohibited cannot tie the knot in Massachusetts.

Gov. Mitt Romney, a Republican who is a considering a run for president in 2008, welcomed the decision, saying he did not want Massachusetts to become “the Las Vegas of same-sex marriage.”

Romney is just warming up here. It gets more offensive later!

The Supreme Judicial Court upheld a 1913 state law that forbids nonresidents to marry in Massachusetts if their marriage would not be recognized in their home state.

If the court had struck down the law, Massachusetts would have been thrown open to gay couples from across the country to get married. Then they could have returned to their home states to fight for legal recognition for those marriages.

Massachusetts “has a significant interest in not meddling in matters in which another state, the one where a couple actually resides, has a paramount interest,” Justice Francis Spina wrote.

The state “can reasonably believe that nonresident same-sex couples primarily are coming to this commonwealth to marry because they want to evade the marriage laws of their home states, and that Massachusetts should not be encouraging such evasion.”

This is the part where the court makes an actual legal determination based on a sober look at what the laws on the Massachusetts books show is the only, obvious (if unfortunate, in my opinion) holding in this case.

The ruling leaves in legal limbo an undetermined number of out-of-state gay couples who got married in 2004 in Massachusetts when it became the first state to let gays wed.

Arline Isaacson of the Massachusetts Gay and Lesbian Political Caucus called the decision “a painful reminder that we remain second-class citizens.”

“It’s painful to know you’ll be treated equally under the law if and only if you happen to live here,” she said. “Otherwise, you are completely unequal as a gay person.”

So this is the part where I have to criticize people for whom I have a lot of sympathy. I am a proponent of granting full and equal rights to homosexual couples, definitely including the right to marry, but to suggest (as I think Isaacson may be, here, and as I think a lot of activists do, generally) that the court should have ruled otherwise because it is, in some sense, the “right” thing to do, is a bad move. The problem isn’t the judges; the problem is the laws. I think Isaacson is hinting at that in this quotation, but I wouldn’t mind seeing it more explicitly stated somewhere (here?).

But the governor said: “It’s important that other states have the right to make their own determination of marriage and not follow the wrong course that our Supreme Judicial Court put us on.”

Okay, this is what I was talking about before. What a dickhead. What does Romney get out of this statement, which antagonizes his constituency and marks him as a strong opponent of gay marriage? Oh, right. The whole running-for-president thing. Well, I’ll just state that I look forward to his embarrassing failure in the primaries and move on.

More than 6,000 gay couples have married in Massachusetts since the same court ruled in a landmark decision in 2003 that the state Constitution gives same-sex couples the same right to marry as heterosexual ones.

Eight gay couples from surrounding states had challenged the 93-year-old law. Five of those eight couples received marriage licenses in Massachusetts before the governor ordered city and town clerks to enforce the 1913 law.

In Thursday’s ruling, six justices ruled against the gay couples in two separate opinions. Only one member of the seven-justice court dissented.

However, the court sent the cases involving couples from Rhode Island and New York back to a lower court, saying it was unclear whether those states prohibit same-sex marriage.

New York’s top officials have said same-sex marriage is illegal in the state, although that interpretation is being challenged.

“We do consider ourselves still married,” said Amy Zimmerman, 33, of New York City, who has a marriage license with Tanya Wexler, 35. “There is a limbo element to it. We are not exactly sure what is all means yet.”

Hey, check it out–somebody alluding to the fact that this decision did nothing but stir up already-muddied waters. Isn’t rational thought neat?

In arguments before the high court in October, a lawyer for the gay couples said the 1913 law had been unused for decades until it was “dusted off” by Romney in an attempt to discriminate against same-sex couples.

As far as I can tell, this argument is pretty weak. I mean, the specific law may have been anachronistic, but the idea behind it seems like a pretty fair understanding of how the federalist system works. Every state must recognize every other state’s sovereignty, but it’s far from clear that a state may essentially force another state to follow its lead. Sure, Romney is playing dirty with this law in a desperate attempt to distance himself from the forward-thinking decision the Massachusetts Court made to allow gay marriage. But that’s politics, folks, and should be a lesson: if you don’t like a law’s application, get the law changed. Representative government rules.

As for the out-of-state couples who obtained licenses before the law was enforced, the legality of their marriages will have to be determined in their home states on a case-by-case basis, state Attorney General Thomas Reilly said.

All you guys from red states are totally, totally screwed. Sorry.

One justice voted to strike down the 1913 law, saying it was “deeply rooted in discriminatory notions of marriage.” Gay rights advocates have argued that the law was aimed at interracial marriages.

The “resurrection of a moribund statute to deny nonresident same-sex couples access to marriage is not only troubling … but also fundamentally unfair,” Justice Roderick Ireland wrote. “This law has not been enforced for almost 100 years, and certainly never with the vitriol on display.”

The language of the law itself seems pretty unobjectionable. The fact that it’s being used to justify narrow-minded bigotry is disappointing, but that’s just the symptom of a larger problem.

[End of the article]

Summing up: this decision demonstrates not that the Massachusetts judiciary comprises a bunch of jerks who hate homosexuals, but rather that an honest court has no choice but to enforce bad laws. Had the court found a way to get around this law, it would have given opponents of gay marriage more ammunition–activist judges stomping all over the legislature’s bailiwick. If you don’t like this decision (and I hope you don’t), tell your representative. Don’t bother telling your president, though. At least not til 2008.