from Political News
by Bill Duncan,
NARTH Law Advisor
COTE-WHITACRE V. DEPARTMENT OF PUBLIC HEALTH
Massachusetts Supreme Judicial Court
March 30, 2006
The case involved a challenge by eight non-resident same-sex couples and thirteen municipal clerks to Massachusetts statutes that prevents clerks from providing marriage licenses to couples who would be prohibited from marrying in their home states.
The trial court rejected plaintiffs' claims that the law violated state due process and equal protection as well as federal privileges and immunities guarantees. The opinion of the court is very brief and merely affirms the trial court while allowing couples to present evidence that their marriage would not be prohibited in their home state.
The first concurring opinion of Justice Spina (joined by Justices Cowin and Sosman) rejected plaintiffs construction of the law which would have limited its application only to couples whose home state specifically deems a marriage between persons of the same-sex as "void" (rather than "prohibited" or simply not allowed). Rather, the statute should be understood as preventing any non-resident couple from securing a marriage license if the marriage would be prohibited in the home state. The concurrence notes that in Goodridge, the majority stated it was leaving intact the legislature's ability to regulate marriage and allowing other states to decide the issue for themselves. The concurrence also noted that the law does have a disproportionate impact on non-resident same-sex couples but would be reviewed under rational basis scrutiny. Since the statute was enacted in 1913, it was clearly not intended to discriminate against same-sex couples.
The concurrence argued that "a lack of detailed statutory enforcement in the past, to the extent that it was necessary, does not preclude more vigorous statutory enforcement in the present." Since marriage is so important, the concurrence believed that the state has an interest in ensuring that any marriage relationships it creates will be recognized and supported in the parties' home state. In addition, the concurrence identified a valid state interest in not interfering with the marriage policies of other states. The concurrence argued that the plaintiff clerks have no standing to challenge the law in their official position because government entities generally do not have constitutional rights. They could, however, challenge in their individual capacity since they could be subject to fines or imprisonment if they knowingly violated the statutes at issue. The concurrence concluded, though, that the clerks had not shown that non-resident same-sex couples are treated differently from opposite-sex couples. Couples not of the same-sex who are prohibited from marrying in their home state are also to be denied licenses (i.e. underage couples).
In regards to the privileges and immunities claim, the court applied a two part test, whether (1) the right affected was fundamental to the development of a single nation and (2) was supported by a substantial reason. Here, the concurrence believed the statute did not discriminate on the basis of residency but differentiated among non-residents whose marriages would or would not be prohibited in their home states. The concurrence further argued that the Massachusetts law promotes interstate harmony.
Chief Justice Marshall's concurrence (joined by Justice Cordy and partially by Justice Greaney) argued that the first concurrence's reading of the statute as treating a marriage not allowed in the home state as prohibited by that state was too broad. This opinion accused the first concurrence of applying this standard only to same-sex couple, which the opinion felt was "troubling." This opinion argued that the statute should be interpreted to prevent licensing only when the marriage is clearly prohibited by the settled law of the home state. It further argued "[i]t is neither arbitrary nor capricious for the Legislature to decide as a matter of public policy to restrict the Massachusetts marriages of out-of-state residents" as provide by Massachusetts statutes.
The concurrence believed that the state can decide to direct its resources only to non-resident marriages that will be recognized in the parties' home state. The disparate impact of these statutes is caused not by the neutral Massachusetts law but by the laws of other states. The concurrence concluded, though, that non-residents must be allowed to show that their home state does not prohibit same-sex marriages and the plaintiffs in this case from New York and Rhode Island will be allowed to do this on remand.
Justice Greaney concurred separately to say that he did not believe the statues here were supported by compelling reasons, but that plaintiffs have not shown that the law is not supported by any conceivable rational basis and, under Goodridge, the rational basis standard is the appropriate one.
Justice Ireland dissented. He argued that the Goodridge decision stands for the proposition that marriage laws cannot take gender into consideration in any way including in state marriage recognition laws. He argued that since Massachusetts' public policy forbids discrimination it should not give effect to the discriminatory laws of other states. He also believed that since Massachusetts doesn't know how other states will treat a Massachusetts same-sex marriage, it should rely on possible non-recognition in its policy towards non-residents. The dissent further argued that the statutes are being selectively enforced and that the enforcement is based on animus which offends the "spirit" of Goodridge.