Gay marriage now! (lawyer question)

After looking over the laws of my home state of Massachusetts, I find that although you can’t marry certain close relatives, or have more than one spouse at a time, no mention is made of the sexes of the happy couple. So why can’t gay couples just find an agreeable clergyman and get married, without petitioning the legislature for new laws?

I am not familiar with Massachusetts law, but many jurisidictions define the term “marriage” as “a legal union between one man and one woman,” or words to that effect. If the definition itself forecloses same-sex unions, there is no need for additional legislation to specifically outlaw it.

They can’t get married because they will not be issued a marrige license in the first place. Several couples have tried this in various states, and then used that refusal as a basis to start legal proceedings for gay marriage.

I know this will sound bad, but because I am doing a quick post and run at work I can’t find a cite. I will follow up with cites if I can find them when I get home.


You might have added that, once the legal proceedings had begun, various tactics were employed to ensure the couples could not be granted a marriage license by the courts.

In Alaska, for example, a judge issued a preliminary ruling asking state attornies to demonstrate a compelling reason not to grant two men a marriage license. Before such a reason (if there is one) could be offered, the legislature put a constitutional amendment on the ballot, defining marriage for heteros only. Voters approved the change, and the judge had no choice, in light of the new constitution, to dismiss the case.

Thus, if anyone tries it in Massachusetts, I would expect the same thing to happen. (Well, maybe not in Massachusetts. We’ll see.)

And of course, there is a new movement to amend the U.S. Constitution with a heteros-only marriage clause.

…It was a similar legal proceeding that led to the Vermont Supreme Court ruling that some form of same-sex marriage must be created. At the direction of the court, the VT legislature created the domestic partner status.

So I guess the reaction to the legal challenge depends on where you are.

Thank you very much TheeGrumpy, you made exactly the points I was thinking of much more eloquently.

If you would like a cite, here is a link to a case in NY where a gay male couple was denied a marriage license.

This does differ from state to state, 30 states have adopted pre-emptive laws that define marriage as one man/one woman. For a map of the states, go here . For a large amount of imformation on gay marriage, you can go here to Lambda Legal’s marriage page.


Moi eloquent? I’m not the one who provided useful links. :slight_smile: