There was a small mystery surrounding the latest big victory in same-sex marriage in Massachusetts during the past week—and there were some big hints that, if proponents of same-sex marriage equality can preserve and defend their state's constitution for four years, the battle may be done, at least in that state.
First, the victories: The Massachusetts House voted 118 to 35 Tuesday, July 29, to join the Senate in repealing a state law that has been used to prevent out-of-state gay couples from coming to Massachusetts to obtain marriage licenses.
Moreover, the Massachusetts legislature then passed an 'emergency preamble' to the legislation repealing a law used to keep out-of-state gay couples from marrying in the state. The law, signed by Gov. Deval Patrick July 31, went into effect immediately.
Massachusetts was the first state to allow same-sex couples to obtain marriage licenses, in May 2004. But California, in June of this year, became the first state to enable gay couples—resident or non-resident—to obtain marriage licenses.
'This is huge,' said Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus and a key lobbyist on gay civil rights matters before the legislature. 'This sends a really loud, strong message that, not only will we not discriminate against people in Massachusetts, but, just as importantly, Massachusetts will not enable other states to discriminate. That's big.'
The state constitution stipulates a bill becomes law 90 days after the governor has signed the legislation. Before the emergency preamble was passed late July 30, that meant out-of-state couples who wanted to marry in Massachusetts would have to wait until Oct. 29.
To be considered an 'emergency law,' a piece of legislation must be passed with an 'emergency preamble' that sets forth 'the facts constituting the emergency' and contains a 'statement that such law is necessary for the immediate preservation of the public peace, health, safety or convenience.'
The Senate bill, passed July 15, did not include such a preamble nor did the House bill. And everybody seemed to suggest it wasn't going to happen.
Melissa Threadgill, a spokesperson for MassEquality, a statewide gay organization leading the marriage fight, said she did not know whether the organization has sought such a declaration. Isaacson said there is no strong interest in asking for it.
'It adds another layer on to the process,' said Isaacson. 'And while we'd have loved an emergency preamble, the fact of the matter is that [ the bill will ] go into effect in three months and that gives people time now to plan their weddings.'
The constitution allows for the governor to unilaterally declare the legislation to be treated as emergency legislation, but Becky Deusser, a spokesperson for the governor, said she was not aware of that option and that she never heard of any discussion for Patrick to do so.
Now that the governor has signed the legislation with an emergency preamble, the mystery about when the law goes into effect is solved.
Still, there is a little mystery left: could there be yet another referendum—this time to reinstate the 1913 law.
Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, the gay legal group that led the historic lawsuit that led to equal marriage rights in Massachusetts, said he doesn't think, as a legal matter, a referendum can be held on the 1913 repeal.
Politically, of course, it would be an awkward sell, given that Rep. Byron Rushing, a well-respected African-American civil-rights leader, said the repeal was not only a matter of 'fairness and equality,' but an eradication of a vestige of a discriminatory law originally aimed against Blacks.
The so-called '1913 law' was enacted in 1913 to discourage interracial couples from obtaining marriage licenses in Massachusetts and then returning to their home states where such marriages were prohibited. Rushing noted that the law went virtually unused until May 2004, when then-Republican Gov. Mitt Romney ordered its enforcement as a way to stop gay out-of-state couples from obtaining marriage licenses in Massachusetts.
The state supreme court upheld Romney's use of the law, but his successor, Patrick, put it on his hit list.
And there is at least some evidence to suggest that, after four years of losing battles, opponents of equal marriage in Massachusetts have run out of steam and ideas. They were much more low-key this time around—especially compared to the knock-down, drag-out fights that have characterized the gay marriage battle in Massachusetts during the past four years. They did stage a modest effort to defeat the bill in the House this past week, with several speakers warning of the 'nightmare' consequences of allowing gay couples from other states to obtain marriage licenses in Massachusetts. But, surprisingly, their 'nightmares' were not of the Sodom-and-Gomorrah variety. Instead, they fretted about 'legal limbo,' should those out-of-state couples decide to divorce back in their home states. One opponent, Rep. John Lepper, suggested that allowing out-of-state couples to marry in Massachusetts might be 'detrimental to same-sex marriage' by provoking legislators in other states to 'increase barriers' to same-sex unions. He said this while also pointing out that most states already have a statutory barrier, and many have constitutional ones.
And although hundreds of opponents staged protests outside the state capitol building during past legislative fights over gay marriage, there were none July 29. The 'Massachusetts Family Institute' issued a statement deriding passage of the repeal legislation but said nothing about any options to take their fight to the ballot or defeat legislators who supported it.
Lisa Barstow, a spokesperson for the group, said the organization might provide some guidance to opponents of same-sex marriage in California, Florida and Arizona, where such battles will be on the ballot in November.
©2008 Keen News Service