Massachusetts Gay Marriage Decision

The highest court in Massachusetts rules that, in most cases, gay and lesbian partners from out of state are not welcome to marry in Massachusetts, which has legalized gay marriage for in-state partners. Neal Conan leads a discussion.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

First to Massachusetts, same-sex couples who don't live in that state cannot get married there, unless gay marriage is legal where they live. That was the ruling handed down today by the Massachusetts Supreme Judicial Court. The case is closely being watched by both sides on this issue and may have ramifications that go far beyond the borders of Massachusetts. Joining us here in Studio 3A is Kenneth Jost, Supreme Court editor for the Congressional Quarterly Press. Thanks for coming back. Nice to have you back on TALK OF THE NATION.

Mr. KENNETH JOST (Supreme Court Editor, Congressional Quarterly Press): Glad to be here, Neal.

CONAN: First, tell us what the ruling says.

KEN: Well, the ruling says that a Massachusetts law, enacted in 1913, that prohibits Massachusetts from performing a marriage that would be void in the state where the couple lives can't be performed there, contrary to the normal rule. And the Supreme Judicial Court of Massachusetts ruled that that law is constitutional by a 6:1 vote. And splitting into two camps said that it can be applied to states that have affirmative prohibitions against recognizing same-sex couples. But in any state where the issue is up in the air, the couple from New York, for instance, can come into Massachusetts and try to prove in a trial-level court in Massachusetts, hey, New York would recognize our marriage so go ahead and marry us here.

CONAN: An issue that remains undecided as yet in the state of New York. This law though, that you say dates back to 1913, this was, is a law that had fell into considerable disuse. As I understand it, it was passed initially to prohibit interracial marriages.

KEN: One of the main purposes of the law, at the time of enactment, was to prevent Massachusetts from performing interracial marriages. Half a dozen other states enacted such laws, but that's all. One of those states has repealed the law, so that as of today, these so-called reverse-evasion laws are on the books in only six states and Massachusetts is the only of those states that has recognized same-sex marriage and none of the other states is on the verge of doing that. So the immediate effect of this decision is only in Massachusetts.

CONAN: Now, if the court had gone ahead and said, okay, people from California, Oregon, wherever, can come to Massachusetts and get married, the issue would then would have arisen in, when they went back home to their states, no?

KEN: That's right. The home state has always had the authority to say, hey, we don't recognize that kind of marriage here. And this law, nothing in this case would have affected that.

CONAN: But it, there is also a law on the books that say states have to recognize each other's laws, right?

KEN: States generally have to recognize each other's laws, but marriage is one of those areas where it's not absolutely required.

CONAN: So, but, had this gone ahead, we would have seen a case that probably would have gone to the Supreme Court.

KEN: Yes. And ultimately one of these cases is gonna reach the Supreme Court.

CONAN: Now, how big is this as an issue for both sides in this dispute?

KEN: Well, it doesn't have a direct effect on the debate either in those states where there are antigay marriage amendments that are about to be voted on in November. It doesn't have an immediate bearing on those states where there are gay marriage cases pending in the courts right now, seven such states. But if a state were to recognize same-sex marriage, say California, or say New York, where cases are pending, opponents of gay marriage could try to get one of these laws passed, so as to limit the impact of that kind of ruling.

CONAN: Similarly, on the other side of the case, these eight couples who brought this case in Massachusetts, they've gone as far as they can in the state of Massachusetts. The highest court in that state has now ruled. Could they then turn to the federal courts and say, hey, wait a minute, this 1913 law, is that constitutional?

Mr. JOST: They certainly could try. The reading of this case would be that they'd have an uphill road.

CONAN: Thanks very much.

Mr. JOST: Glad to be here.

CONAN: Kenneth Jost, Supreme Court editor of the Congressional Quarterly Press. He was kind enough to join us here in Studio 3A.

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