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Home » PEOPLE AND PLACES in MA » MASSACHUSETTS (all topics) » Love Does Not Discriminate
Map of the US Showing Which States Allow or recognize same-sex marriage
Love Does Not Discriminate

Part 1 – Marital Discrimination in the US

By Mark B. Oliver | September 21, 2010

In this series of articles ONE investigates the implications of same-sex marriage in Massachusetts.

Marriage. A simple yet powerful word, marriage has different meanings for different people and cultures around the world: it is a right, an aspiration, happiness, a spiritual union, an arranged partnership, a commitment, an extension of religion — but for some, the word is only a reminder of what they are denied.

In this six-part series of articles, ONE will investigate the history of marital discrimination in the United States and seek to ascertain what, if any, economic, cultural and humanitarian benefits are gained from allowing couples of the same sex to marry.

James Murdock and Jack Martin

In the not too distant past, marriage was denied to interracial couples in the United States and only became a federal right following a 1967 ruling of the Supreme Court. In the case of Loving v. Virginia, the court ruled that Virginia’s anti-miscegenation statute violated both the due process clause and the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. This ruling swept away discriminatory laws throughout the United States, allowing interracial couples to marry.

Despite this ruling, many states retained discriminatory laws on their respective statute books even though the laws were unenforceable. In 2000, some 33 years after the Loving ruling, Alabama became the last state to repeal its laws against interracial marriage.

Same-sex couples are denied the right to marry in all but eight countries: Belgium, Canada, Netherlands, Norway, South Africa, Spain, Sweden and since July 2010, Argentina. A further 20 countries, including France, Germany, New Zealand and the United Kingdom, recognize civil unions or registered partnerships but not full marriage.

Same-sex couples do not have the federal right to marry in the United States, but on May 17, 2004, Massachusetts became the first U.S. state to issue marriage licenses to same-sex couples and so provide these couples with the right to legally marry. This followed the Massachusetts Supreme Judicial Court’s ruling in Goodridge v. Department of Public Health on Nov. 18, 2003, that the state’s ban on same-sex marriage was unconstitutional; the court gave the state legislature 180 days to change the law.

In February 2004, the court issued a statement to the Massachusetts Senate that explained that it was unconstitutional to allow opposite-sex couples marriages while only allowing same-sex couples civil unions, even if the state rights granted in both cases were identical. Their logic was that such a difference was unconstitutional discrimination; if all citizens are equal under the law, then there should be no rights or privileges afforded to only some of the state’s citizens, and this includes the right to marry.

Despite the court’s direction, the Legislature failed to change the law. On May 17, 2004, exactly 180 days after the court’s ruling, the governor at the time, Mitt Romney, ordered Massachusetts town clerks to issue marriage licenses to same-sex couples despite the lack of legislative action. Although Massachusetts has a three-day waiting period after a marriage application has been issued, a judicial waiver can remove this requirement. The first same-sex marriage took place by 9:15 a.m. that same day.

Governor Patrick Deval

The right for same-sex couples to marry in Massachusetts initially applied to only those domiciled in the state because of a 1913 law that restricted out-of-state couples from marrying in Massachusetts if their marriage would be void in their home state. Couples from Rhode Island and New Mexico were allowed to marry in Massachusetts, as same-sex marriage was not prohibited in either state at the time.   Restrictions on New York residents were removed in 2006. On July 31, 2008, Massachusetts Governor Deval Patrick signed an act repealing the 1913 law, which finally allowed all non-residents to marry in Massachusetts. Various initiatives to overturn the right for same-sex couples to marry have not progressed to date, and the earliest any ballot initiative could be put before voters would be in 2012.

Of the six New England states, Connecticut, Massachusetts, New Hampshire and Vermont allow same-sex marriage as of press time, and Rhode Island recognizes but does not perform them. Against the background of just eight countries worldwide providing same-sex marriage, New England is clearly at the forefront of this cultural and political shift.

Same-sex marriage in Massachusetts has allowed devoted, loving couples to express their love and commitment to each other in front of family and friends and to become entitled to state benefits that marriage provides. Lack of federal recognition, however, denies these couples their entitlement to over 1,300 federal rights that are afforded opposite-sex couples.

In the continuation of this series, ONE will explore what marriage has meant to three couples, two of whom were married in Provincetown in 2009, with the third planning their marriage for later this year. ONE will also explore the economic impact of same-sex marriages and the accurateness of the projection in the 2008 UCLA Study, “The Impact of Extending Marriage to Non-Resident Same-Sex Couples on the Massachusetts Budget,” that allowing out-of-state same-sex couples to marry would significantly boost the Massachusetts economy, including state and local revenues.

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