[Also in legal news: The Supreme Court is due to reaffirm in some sense the rule of international law. Not only the Hamdan case, but one respecting notifying foreign consulates that their citizens are in our custody. The Bush Administration asshole policy of deciding to no longer actively take part in the treaty notwithstanding, a majority of the Court appeared willing to assume it has some real positive law security for those detained.]
The governor of Massachusetts won the first round of his attempt to narrow the reach of the gay marriage ruling of the state supreme court a few years ago. A ruling, for those who respect state rights: "The genius of our Federal system is that each State's Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the [federal Constitution], each State is free to address difficult issues of liberty in the manner its own Constitution demands." This is the true sentiment of the Tenth Amendment, one that ultimately was meant to further liberty, not state power.
The governor and presidential hopeful pushed for the enforcement of a nearly hundred year law that barred marriages to non-state citizens if the marriage was barred by their home state. A major reason why people went to other jurisdictions to marry, including the couple in the famous interracial marriage case, was because their home state barred interracial marriages. But, this was not the only reason -- for instance, even in the early 1900s, divorce was hard to obtain. [Somewhat ironically, New York remains the lone holdout against true no fault divorce.] And, various odds and ends situations arose as well -- cousin marriages, etc.
All the same, the law was basically defunct these days, and had a racist taint. The call to re-enforce the law -- as the sole dissent in the case addressed here noted -- clearly was discriminatory in intent and action. Nonetheless, a somewhat related matter arose in California in which some people tried to interpret a provision against same sex marriages to only apply to out of state residents. Some felt this was not only a overly creative reading of the statute but basically unconstitutional. They pointed to the Privileges and Immunities Clause of the federal Constitution, which secures the rights of out of state visitors.
Well, in the first ruling on the matter, the Massachusetts Supreme Court said "not so fast" and with only one dissent (one judge was wary). The author of the same sex marriage case wrote a separate opinion tentatively defending the provision in this fashion:
It is rational for Massachusetts to take precautions that marriages performed here be considered legally binding and not merely aspirational. Put another way, it is rational for the Legislature to take steps to ensure that marriages performed here will hold up elsewhere, and that they will not be ignored by other States. The Commonwealth's concern is not a matter of comity so much as a matter of federalism, that is, of a State's concern for the integrity of its own laws.
Meanwhile, a plurality opinion spoke of comity and basically was pragmatic in sentiment:
By giving respect and deference to the legislative enactments and public policy pronouncements of other jurisdictions, it is my hope that principles of comity will have a significant impact on other jurisdictions if, and when, confronted with the issue whether to recognize validly contracted same-sex marriages of Massachusetts couples, even where those couples would not be able legally to marry in such other jurisdictions.
So two reasons really: the state has a reason to only supply marriages to those who they know would actually be able to enjoy them and they should respect foreign state laws because hopefully they will respect Massachusetts' as well. The latter sentiment is nice and all, but a bit naive in this context. The former works on some level, but also does not quite work. In fact, of all things, a fugitive slave case was used to underline the point by the one dissent (who also noted that heterosexuals from out of state were not likely to be equally targeted):
The Aves case established the principle that a liberty or right under the Constitution of Massachusetts that is available to citizens of Massachusetts, can be extended to others who travel here from other States, regardless whether their home States deny them those same rights.
I'm with the dissent but am sympathetic to the pragmatic approach, which drove one strong believer in the justice of protecting same sex marriages to sign on for now -- care should be taken to not go too fast in this area. But, the ruling really makes no sense. The state surely has a minimum residency requirement. A person can still can married afterwards, now being a state citizen, and soon enough leave the state. And, overall, the fear a liberty will not be protected by another state should not be a reason not to protect it in one's own state. Likewise, this law basically has unclean hands.
Anyway, interesting case, and a suggestion how even in MA change takes a bit of time.