Eulogy for "Marriage Evasion" in Massachusetts: 1913-2008

Another Step for "Coast-to-Coast" Gay Marriage.
On July 31, Massachusetts finally repealed a law passed in 1913 that prohibited residents from other jurisdictions from marrying in Massachusetts if they were unable to marry in their home state. This so-called "marriage evasion" law was passed by Massachusetts to prevent out-of-state couples -- most notably, interracial couples -- from "evading" their home states' marriage laws by traveling to Massachusetts to take advantage of its less restrictive marriage requirements. This 1913 law was hardly discussed or enforced for decades until Massachusetts started allowing same-sex couples to marry in 2004. The repeal of this law eliminates the last vestige of Massachusetts law that treated a marriage between two people of the same sex differently from a marriage between two people of different sexes.

The repeal of this law is another victory in what has been a surprisingly good decade for advocates of legal recognition of LGBT relationships. Eleven years ago, no state gave legal recognition to same-sex relationships. As this map shows, today, seven states give very robust legal recognition for such relationships and an additional four states give less recognition.

Recent History
In 2004, Massachusetts became the first state in the country to allow same-sex couples to marry. However, because of the 1913 marriage evasion law, residents of other states could not marry in Massachusetts. Thus, while the availability of same-sex marriages garnered extensive national attention, few people in the U.S. could actually marry a person of the same sex. This year, California joined Massachusetts in allowing same-sex couples to marry. California allows any non-resident to marry there; residents from any state can get married to a person of the same sex by traveling to California. With the repeal of the 1913 law, everyone has a choice to get married either on the east coast or the west coast. And some states, like New York, will recognize its residents' same-sex marriages in other jurisdiction, even though New York doesn't allow same-sex couples to get married in New York.

The national battle for the legal recognition of same-sex relationships is far from over. The vast majority of states have laws or constitutional provisions (or both, just to be extra safe) that explicitly refuse to recognize same-sex marriages, as this map shows.

If a resident of these states gets married in Massachusetts or California (or Canada or Spain), his home state will not recognize this marriage. Some states, like Delaware and Wisconsin, have marriage evasion laws that work in the other direction than the repealed 1913 law, prohibiting -- through state criminal law -- their citizens from going to another state to get married when they can't get married in their home state. And California and Massachusetts marriages get no federal recognition and thus no federal benefits or rights.

As the above maps show, the legal situation today is a patchwork of recognition and non-recognition for same-sex relationships (for more on the patchwork, read one of my previous posts). This patchwork is very similar to how the United States looked before 1967 regarding interracial marriages. This map below shows the patchwork of states that allowed interracial marriages in 1913, the year the Massachusetts marriage evasion law was born.

Back then, interracial marriages were allowed in Massachusetts and 17 other states. Such marriages were illegal in the other 30 states. Some states, like Virginia, made it a crime for its residents to travel to another state to get married to a person of a different race. Some states that allowed interracial couples to marry would recognize an interracial marriage from another jurisdiction for some purposes but not for other purposes. It took until 1967 for the landmark (and wonderfully named) Supreme Court case of Loving v. Virginia to turn this map all blue. As we happily bury the 1913 law, let us hope it won't take 53 more years for every state to allow same-sex couples to marry.