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Legislature to take up repeal of 1913 law shortly by Ethan Jacobs
associate editorWednesday Jul 9, 2008 Wilkerson predicts Senate vote on Tuesday
The state legislature will likely take up a bill to repeal the 1913 law that prevents non-resident same-sex couples from marrying before the close of the legislative session at the end of this month.
Sen. Dianne Wilkerson (D-Boston), the champion of the legislation in the Senate, said she expects the repeal bill to come up for a vote in the Senate on Tuesday. She declined to say what she expected the vote count to be, but said she was optimistic the repeal bill would pass.
"I think that the biggest hurdle and the courageous vote that needed to be taken was on the constitutional convention [in which lawmakers defeated a constitutional amendment to ban same-sex marriage], and I see this as more cleaning up loose ends," said Wilkerson.
David Guarino, spokesman for House Speaker Sal DiMasi, confirmed that the House also hopes to pass the repeal legislation by the end of the session, although he declined to give a specific timeframe.
"I can’t comment on specific timing of the bill but I can say that the Speaker, as a strong supporter of gay marriage rights, believes the so-called 1913 law is outdated and unfair. He believes it should be repealed and he is hopeful that we will see it repealed before the end of this session," wrote Guarino in a statement to Bay Windows.
Gov Deval Patrick, who has long supported repealing the 1913 law, said he looks forward to signing the repeal bill should it reach his desk.
"I still think the 1913 law should be repealed, and if the legislature takes it up I look forward to signing it," wrote Patrick in a statement to Bay Windows. "This is about dealing with a Massachusetts statute that has very shady origins going back to a time of lawful racial discrimination and that has concerned me for a long time. If the bill does come to me, I look forward to signing it."
Rep. Byron Rushing (D-Boston) said the House is currently assessing how much support there is among the members to repeal the 1913 law.
"The Speaker is presently doing a poll to see where people are on it, but I don’t think that poll will be finished for us until Friday," said Rushing.
State Rep. Robert Spellane (D-Worcester), who originally filed legislation to repeal the law in 2004, said he expects the bill to come up in the House by the end of next week, and he believes the Senate will take it up first.
"I’m hopeful that we debate the legislation in the House by the end of next week. I would love to have a bill on the governor’s desk that would again support the original Goodridge decision of nearly five years ago and take this unconstitutional law off of our books," said Spellane. In fact, the Massachusetts Supreme Judicial Court upheld the constitutionality of the 1913 law in a 2006 decision in response to a court challenge from Gay and Lesbian Advocates and Defenders (GLAD), but Spellane said the law has blatantly been used to discriminate against same-sex couples.
Marc Solomon, campaign director for MassEquality, credited Wilkerson with moving the legislation forward and said she "has really championed it with the Senate President to get her to move it. I understand that there is a very good chance that it will move before the session ends." The legislation was filed earlier in the session by former Sen. Jarrett Barrios.
The 1913 law prevents out-of-state couples from marrying in the Bay State if their marriage would be considered void in their state of residence. Legal experts differ on the original intent of the law, but many have argued that it was designed at least in part as a way to prevent interracial couples from coming to Massachusetts to evade anti-miscegenation laws in their home state. The state had not enforced the law in decades until shortly before same-sex couples began marrying in Massachusetts in 2004.
Then-Gov. Mitt Romney resurrected the law, using it to deny marriage licenses to same-sex couples from out of state to prevent Massachusetts from becoming "the Las Vegas of same-sex marriage." In response Spellane filed his repeal bill, and Barrios filed an amendment to the Senate budget bill calling for repeal. The Senate amendment passed on a standing vote, but it did not survive budget negotiations with the House. In response to GLAD’s suit challenging the law, the Supreme Judicial Court ruled that the 1913 law was constitutional, but said that states must expressly ban same-sex marriage in order for Massachusetts to deny residents of those states the right to marry. Currently couples from California, Rhode Island, and New Mexico may marry in Massachusetts.
Openly gay Rep. Carl Sciortino (D-Somerville) said he is hopeful the bill will reach the governor’s desk before the end of the session.
"I’m optimistic for its passage. This legislature has dealt with marriage equality, and I don’t think we want to be a part of discriminating against couples who aren’t from this state," said Sciortino.
Senate President Therese Murray, also supports repealing the 1913 law, as does Attorney General Martha Coakley. State House sources told Bay Windows that initial polling of the members shows strong support for the bill, but some members are hesitant about voting on it in an election year.
Solomon said that the implementation of marriage equality in California, which has no residency requirement for same-sex couples who wish to marry there, served as a reminder to legislators, "that we have some unfinished business here and that unfinished business is repealing the 1913 law."
Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, said the California decision helped bolster support for repeal within the legislature. "We’re thrilled that it’s looking very good right now, and we’ve talked to lots of legislators about it, and we’re finding a significant amount of support for the measure. I believe the support has been turbocharged since California won the right to same-sex marriage because by not being the only state in the nation, that made a difference," said Isaacson.
Solomon also pointed out that New York Gov. David Patterson is advancing a law that would mandate legal recognition in New York to same-sex couples married elsewhere. He made the case that there’s no reason why same-sex couples from New York should have to travel as far as California or Canada to tie the knot. "We think that a nice wedding on the beach at the Cape is as a nice a place to get married - and it’s also a lot closer," he said.
Opponents of same-sex marriage have vowed to fight the repeal effort. Kris Mineau, president of the Massachusetts Family Institute, issued a statement warning that legal chaos would follow the repeal of the 1913 law.
"The 1913 law preserves and protects states’ rights and their own constitutions. To dismantle it will create an explosion of new and costly lawsuits, and further erode the people’s right to decide on the definition of marriages. Massachusetts Family Institute remains committed to keeping this law in affect and ultimately providing the citizens of Massachusetts with the opportunity to vote on marriage," wrote Mineau in a statement.
Wilkerson said it was not lost on her that the repeal effort may succeed in the year that Mildred Loving, one of the name plaintiffs in the landmark Loving v. Virginia suit that saw the Supreme Court strike down anti-miscegenation laws in 1967, passed away. She said prior to the Goodridge decision efforts to repeal the 1913 law stalled because lawmakers felt the law was in no danger of being resurrected. "I think about it in terms of what it meant at the time it was [passed], 95 years ago, was to prevent the very thing that highlighted Mrs. Loving’s life, that this was something directed to black people, my ancestors," said Wilkerson. "You fast-forward to 2008 and see it being used again for another pernicious motive. ... This is the best argument for the notion that it is never good to leave policy like this on the books that you know to be bad under this notion that nobody’s ever going to use it, because that’s exactly what happened here."
Ethan Jacobs can be reached at ejacobs@baywindows.com
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