Massachusetts 1913 law
History and text
State Senator Harry Ney Stearns introduced Senate Bill 234 on March 7, 1913. The bill was signed into law three weeks later by Governor Eugene N. Foss. The statute provided that in the Commonwealth of Massachusetts:
Section 11. No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void. Mass. Gen. L. ch. 207, § 11 (2005).
No record of the state Senate debate has been found. Legal experts have said that the original purpose of the legislation was an anti-miscegenation measure; although the law would not have banned interracial marriage (which had been legal in Massachusetts since 1843) it may have been intended to block interracial couples from states that banned interracial marriages from going to Massachusetts to get married. The law was enacted at the height of a public scandal over black heavyweight boxer Jack Johnson's interracial marriages. However, Massachusetts Attorney General Thomas Reilly said there is no evidence lawmakers were motivated by race.
The year prior to the adoption of the 1913 law, an amendment to the U.S. Constitution was proposed in the U.S. House of Representatives to provide that "Intermarriage between negros or persons of color and Caucasians ... within the United States ... is forever prohibited." The amendment failed to pass, but many state legislatures proposed new interracial marriage bans during this period. In 1910, 60 percent of states – 28 of the 46 – already had anti-miscegenation laws. By 1913, anti-miscegenation measures were introduced in half of the 18 states that did not already have a ban, although only Wyoming passed a new anti-miscegenation law during this period.
Following the Supreme Judicial Court's decision in Goodridge v. Department of Public Health (2003), and the legalization of gay marriage in May 2004, the law was resurrected by state officials after several decades during which it had not been enforced. The intent in this second wave of enforcement was to ensure that same-sex couples who did not have an intention of living in Massachusetts once they were married were not issued marriage licenses by the Commonwealth's town and city clerks. Attorney General Tom Reilly would later include in a brief his position that enforcing the law was Massachusetts's way of respecting other states that have banned such marriages.
The renewed implementation of the law was almost immediately challenged by eight same-sex couples from outside Massachusetts and by 13 Massachusetts city and town clerks who argued that they were being turned into "agents of selective enforcement." The challengers argued that the law violates the equal protection provisions of the state's constitution and the United States Constitution. Massachusetts Superior Court Justice Carol Ball, ruled that the law was not unconstitutional, as it was being applied equally to all couples.
On March 30, 2006, the Supreme Judicial Court upheld the application of the law as it applies to marriages of same sex couples in a complex decision, Cote-Whitacre v. Department of Public Health, with three concurring decisions filed and one dissenting vote. The court sent the New York and Rhode Island couples' cases back to the superior court judge, asking the judge to determine whether same-sex marriage is expressly prohibited in those states. It denied the claims of the clerks and all the other couples.
On July 15, 2008, the Massachusetts State Senate voted to repeal the 1913 law on a voice vote. On July 29, 2008, the Massachusetts State House also voted to repeal the 1913 law on a vote of 119 to 36. Gov. Deval Patrick had previously announced his support for repeal, and he signed the bill into law on July 31, 2008. The repeal took effect immediately.
- "Governor signs law allowing out-of-state gays to wed". The Boston Globe. 2008-07-31.
- Greenberger, Scott S. (2004-05-21). "History suggests race was the basis". The Boston Globe. Retrieved 2009-06-23.
- Greenberger, Scott S. (2004-05-21). "History Suggests Race was the Basis". The Boston Globe.
- Saltzman, Jonathan (2005-10-07). "SJC Hears Challenge to Marriage Law". The Boston Globe.
- "Gays Battle 1913 Massachusetts Law". CBS News. 2004-07-13.
- Cote-Whitacre v. Department of Public Health, 844 N.E.2d 623 (Mass. 2006), SJC decision upholding 1913 law
- Moskowitz, Eric (2008-07-16). "Senate votes to repeal 1913 law". The Boston Globe. Retrieved 2009-06-23.
- "House passes 1913 repeal". PolitickerMA.com. 2008-07-29.
- "New Mass. law lets out-of-state gay couples marry". Google News. Associated Press. 2008-07-31. Retrieved 2008-07-31.[dead link]
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