Those Damn Inactivist Judges!
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If you reduce the issue down to petty politics, it's just as well that the Supreme Judicial Court of Massachusetts upheld a 1913 law that generally prevents those who could not marry in their domicile state from coming to Massachusetts, strictly as transients, to get married. The upshot is that gay non-residents cannot come into Massachusetts simply for "drive-by" same-sex marriages.
Some hasty stitches:
--No state owes any non-resident anything except fair and equal treatment. And this law, if applied consistently, is — for better or worse — fair and equal.
--States do, however, owe other states a certain accommodation and respect for their domestic policies aside and apart from the constitutional demands of full faith and credit. That principle will help more than harm the progress of gay marriage rights, as same-sex couples from Massachusetts (and Vermont and Connecticut and, over time, elsewhere) start to leave Massachusetts and seek this "interstate comity" outside of their original gay-friendly states.
--The law in question does not appear particularly oppressive in terms of establishing residency in Massachusetts. Same-sex couples who truly seek to move to Massachusetts to marry will not be impeded by this law.
--The ruling provides a handy counterexample to the Kyl-style lament that all gay marriage rights are the doing of "activist judges." Here the court was decidedly inactivist — just as they were in requiring same-sex marriage in the first place. They interpreted this non-resident marriage statute as they were called upon to do, just as they interpreted the Massachusetts Constitution as they were called upon to do in the original Goodridge same-sex marriage decision. So what precisely is the big deal, and where precisely is the "judicial activism"?
The case is Cote-Whitacre v. Department of Public Health (PDF / text). The law in question is Massachusetts General Law 207.11.
More thoughts from defcon:blog.
Some hasty stitches:
--No state owes any non-resident anything except fair and equal treatment. And this law, if applied consistently, is — for better or worse — fair and equal.
--States do, however, owe other states a certain accommodation and respect for their domestic policies aside and apart from the constitutional demands of full faith and credit. That principle will help more than harm the progress of gay marriage rights, as same-sex couples from Massachusetts (and Vermont and Connecticut and, over time, elsewhere) start to leave Massachusetts and seek this "interstate comity" outside of their original gay-friendly states.
--The law in question does not appear particularly oppressive in terms of establishing residency in Massachusetts. Same-sex couples who truly seek to move to Massachusetts to marry will not be impeded by this law.
--The ruling provides a handy counterexample to the Kyl-style lament that all gay marriage rights are the doing of "activist judges." Here the court was decidedly inactivist — just as they were in requiring same-sex marriage in the first place. They interpreted this non-resident marriage statute as they were called upon to do, just as they interpreted the Massachusetts Constitution as they were called upon to do in the original Goodridge same-sex marriage decision. So what precisely is the big deal, and where precisely is the "judicial activism"?
The case is Cote-Whitacre v. Department of Public Health (PDF / text). The law in question is Massachusetts General Law 207.11.
More thoughts from defcon:blog.
Posted by Kip on
30 March 2006
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