Saturday, June 17, 2006

The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America

Part I - Legal Authority

The Legal Authority to Certify and Solemnize a Marriage in Massachusetts Originates Solely by Statute

“Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.[9] “Marriage is the foundation of the family. It is a social institution of the highest importance.”[10] It is of such importance that the Founding Fathers of our Commonwealth’s Constitution sought fit to specifically address “marriage” in the Constitution. It is through the power emanating from the Constitution that permits the Commonwealth’s legislature to make laws regarding and addressing causes concerning “marriage.[11]

Our laws in Massachusetts have long recognized that marriage is the union between husband and wife;[12] one man and one woman. “Civil marriage is an institution created by the State. . . . [T]he marriage statutes are derived from English common law[13] and were first enacted in colonial times.[14] They were enacted to secure public interests and not for religious purposes or to promote personal interests or aspirations. . . . [T]he institution of marriage [as] "the legal union of a man and woman as husband and wife," . . . has always been so under Massachusetts law, colonial or otherwise.” Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J., dissenting).

There is only one way to become married in Massachusetts; the legal authority to enter into a civil marriage is granted exclusively by statute.[15] Chapter 207 is the marriage statute in Massachusetts.[16] It has fifty (50) subsections[17] which define the parameters of who, what, where, and when persons can be married in the Commonwealth along with numerous other statutes that further define the parameters of the marriage relationship.

For a marriage to legally exist, that marriage has to be formally solemnized and the requirements of the marriage statute must be met.[18] The legal authority to issue a certificate of intention to marry is found in c.207 §28 and the legal authority to solemnize a marriage is found at c.207 §38. “The status of the parties as husband and wife [is] fixed when the marriage [is] solemnized.[19] A marriage cannot be avoided or the obligations imposed by law as incident to the relation of husband and wife be relaxed by previous agreement between the parties.”[20] This is because “[m]arriage is not merely a contract between the parties.”[21] “The moment the marriage relation comes into existence, certain rights and duties necessarily incident to that relation spring into being."[22]

“The Commonwealth has, [and has always had], a deep interest that [the] integrity [of marriage] . . . not [be] jeopardized."[23] “Massachusetts has a strong public policy in preventing the rules governing marriage from being subverted.”[24] Traditionally, the Supreme Judicial Court has “guarded jealously the rules applicable to married people, and [has] not extended them to parties who cohabitate without marriage.”[25] Civil marriage . . . in Massachusetts “[has] always been wholly [authorized] by statute.”[26] In contrast, in other places like Canada, there exists a right to marry outside of the statutory authority.[27] That legal right is granted under the “common law” and it is called common law marriage.[28] Common law marriage, however, has never been allowed in Massachusetts.[29]

Simply because the marriage statute does not explicitly identify a particular “marriage” as void, does not make it a legal marriage. See Milford v. Worcester, ___ Mass. 47, 55 (1810). A marriage that is not duly authorized “is not a legal marriage” and “is not entitled to the incidents of a marriage duly solemnized.” Milford v. Worcester, ___ Mass. 47, 56 (1810).

Same-sex relationships fall outside the statutory rules of “marriage.”[30] Chapter 207 does not (and never did) allow their agreements to be solemnized by any agent of the state or of any subsidiary local government.[31] But somehow today same-sex couples believe they are being “married.”

How can town clerks be “certifying” and justices of the peace and politicians be “solemnizing” agreements for relationships that violate Massachusetts law? When a justice of the peace says to a same-sex couple the words “I do now, by virtue of the authority vested in me by the Commonwealth of Massachusetts, pronounce you legally married,” the glaring question is . . . by what authority?

[9]    Loving v. Virginia, 388 U.S. 1 (1968). This unique characteristic of marriage would no longer exist if the definition of marriage is changed to include same-sex couples.

[10]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987) (where Supreme Judicial Court was unwilling to subvert the value of marriage by recognizing a right to recover for loss of consortium by a person who has not accepted the correlative responsibilities of marriage); see Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J., dissenting). (“This court, among others, has consistently acknowledged both the institutional importance of marriage as an organizing principle of society, and the State's interest in regulating it. See French v. McAnarney, 290 Mass. 544, 546 (1935) ("Marriage is not merely a contract between the parties. It is the foundation of the family. It is a social institution of the highest importance. The Commonwealth has a deep interest that its integrity is not jeopardized"); Milford v. Worcester, 7 Mass. 48, 52 (1810) ("Marriage, being essential to the peace and harmony, and to the virtues and improvements of civil society, it has been, in all well-regulated governments, among the first attentions of the civil magistrate to regulate [it]"). See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) ("Marriage and procreation are fundamental to the very existence and survival of the [human] race"); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage "is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress"); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) ("no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth ... than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman ... the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement"); Reynolds v. United States, 98 U.S. 145, 165 (1878) ("Upon [marriage] society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal").

[11]    cite section of constitution regarding judicial power -- causes of marriage are for the governor and for the legislature.

[12]    Davis v. Misiano, 373 Mass. 261, 262 (____); See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[13]    See Commonwealth v. Knowlton, 2 Mass. 530, 534 (1807).

[14]    See Commonwealth v. Munson, 127 Mass. 459, 460 (1879).

[15]    Although Massachusetts will recognize a valid common law marriage created in another state under the full faith and credit accorded to other state’s laws REWORD THIS AND FIND CITE


[17]    Actually there are fifty-eight but eight of the subsections have been repealed over the years.

[18]    See Davis v. Misano, 373 Mass. 261 (1977). In Cote-Whiteacre v. Dept. of Pub. Health, SJC-09436 (2006), the SJC explained the entire set of steps for the proper solemnization and certification of a marriage:

To marry in Massachusetts, all applicants for a certificate of intention of marriage, commonly known as a marriage license, must complete a written notice of intention of marriage (notice) on forms provided by the registrar of vital records and statistics (registrar), and submit it to the clerk or registrar of any city or town in the Commonwealth, along with the appropriate fee.[7] See G. L. c. 207, §§ 19, 20. The notice shall include "a statement of absence of any legal impediment to the marriage, to be given before such town clerk under oath by both of the parties to the intended marriage." Id. at § 20. The applicants also shall provide the clerk with the residence address of both parties. See id.

On or after the third day from the filing of the notice (or sooner if the time period has been waived by a judge), the clerk shall deliver the marriage license to the parties. See id. at §§ 19, 28, 30. Then, an authorized officiant may solemnize the marriage. See id. at §§ 28, 38-39. After solemnization, the officiant completes the portion of the license setting forth the time and place of the ceremony, signs it, and returns it to the clerk who issued it. See id. at § 40. The clerk records the marriage in the appropriate registry, transmits the original record of the marriage and all documentary evidence to the registrar, and retains a certified copy of the license. See G. L. c. 46, §§ 1-2, 17A. The Commissioner of Public Health (commissioner) binds the marriage records with indexes thereto and retains their custody. See G. L. c. 111, § 2.

[19]    French v. McAnarney, 290 Mass. 544 (1935)

[20]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987); see French v. McAnarney, 290 Mass. 544 (1935)

[21]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987); see French v. McAnarney, 290 Mass. 544 (1935)

[22]    French v. McAnarney, 290 Mass. 544 (1935)

[23]    Feliciano v. Rosemar Silver Co., 401 Mass. 141 (1987); see French v. McAnarney, 290 Mass. 544 (1935)

[24]    Reep v. Commissioner of the Department of Employment & Training, 412 Mass. 845 (1992); Green v. Richmond, 369 Mass. 47, 51 (1975)

[25]    Collins v. Guggenhem 417 Mass. 615, 617 (1994) (“Cohabitation in Massachusetts does not create the relationship of husband and wife in the absence of a formal solemnization of marriage . . . we have never recognized common law marriage.”); Reep v. Commissioner of the Department of Employment & Training, 412 Mass. 845 (1992); Davis v. Misano, 373 Mass. 261 (1977); Green v. Richmond, 369 Mass. 47, 51 (1975)

[26]    Robbins v. Robbins, ___ Mass. 528 (1886); Commonwealth v. Munson 127 Mass. 459); Sparhawk v. Sparhawk, 116 Mass. 315 (1874).

[27]    Common law marriage exists in Alabama, Colorado, District of Columbia, Georgia (if created before 1/97), Idaho (if created before 1/96), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created before 10/91), Oklahoma (possibly only if created before 11/1/98. Oklahoma's laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.), Pennsylvania (if created before 9/03), Rhode Island, South Carolina, Texas, Utah. See; see also (“common-law marriage n. an agreement between a man and woman to live together as husband and wife without any legal formalities, followed and/or preceded by cohabitation on a regular basis ( usually for seven years). Common-law marriage is recognized in Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah, thereby recognizing a marriage for purposes of giving the other party the rights of a spouse, including inheritance or employee benefits. Such informal partnerships are recognized by some local governments for purposes of the rights of a spouse under employment contracts and pension rights even where the state does not recognize this as a marriage.)”

[28]    See Egan v. Canada, [1995] 2 S.C.R. 513, 536-37

[29]    Commonwealth v. Munson, 127 Mass. 459, 460 (1879) (“In Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth; the canon law was never adopted; and it was never received here as common law that parties could by their own contract without the presence of an officiating clergyman or magistrate, take each other as husband and wife and so marry themselves.”). See also Wilcox v. Trautz, 427 Mass. 326 (Massachusetts [does] not recognize common law marriage); Heistand v. Heistand, 384 Mass. 20 (1981) (“The ceremonial exchange of vows between the plaintiff and David Lowry was a legal nullity in this Commonwealth, as the judge below acknowledged. Massachusetts does not recognize common-law marriage.”).

[30]    See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

[31]    See Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).