flag-us-ma.gifUNITED STATES

Massachusetts

 

Higher Law. Massachusetts is bound by the United States Constitution, federal law, and the international obligations of the United States.

Section 2 of the federal Defense of Marriage Act purportedly authorizes the state to disregard any “relationship between persons of the same sex that is treated as a marriage under the laws of [another] State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S.C. § 1738C. The constitutionality of that provision is disputed.

Internal Law. Massachusetts has authorized same-sex marriages under its own internal law since 2004. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003) (invalidating excusion of same-sex couples from civil marriage); Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565 (2004) (rejecting civil union alternative as inadequate to remedy constitutional defect). Massachusetts does not provide for civil unions or domestic partnerships.

In 2007, the state legisature decisively rejected a citizen-initiated constitutional amendment to prohibit same-sex marriages.

Conflicts Law.

1. Formalization in Massachusetts by Non-Residents. Massachusetts applies its own internal law to marriages formalized there, except as provided by the state’s version of the Uniform Marriage Evasion Act, Mass. Gen. Laws ch. 207, secs. 10-13.

The Evasion Act prohibits the formalization in Massachusetts of any marriage “by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction.” Mass. Gen. Laws Ann. ch. 207, sec. 11. To issue a marriage license to a non-resident, a Massachusetts officer must “satisfy himsef … that such person is not prohibited from intermarrying by the laws of the jurisdiction where he or she resides.” Id., sec. 12.

In Cote-Whitacre v. Department of Public Health, 844 N.E.2d 623 (Mass. 2006), the Supreme Judicial Court of Massachusetts interpreted these provisions of the Evasion Act. In the controlling opinion, the Court held that section 11 prohibits an in-state marriage “where the relevant statutory language of the applicant’s home State explicity provides that particular marriages are ‘void.’” Id. at 636 (Marshall, C.J., concurring). Section 12 prohibits an in-state marriage “expressly forbidden by another State’s positive law—that is, by constitutional amendment, statute, or controlling appellate decision.” Id. at 653.

Based on these standards, Massachusetts currently allows residents of Rhode Island and New Mexico to formalize same-sex marriages in Massachusetts. In addition, same-sex marriages formalized in Massachusetts by New York residents prior to July 6, 2006—when New York’s high court made clear that same-sex marriages were not authorized by New York law—are valid. Massachusetts would presumably also allow the formalization of same-sex marriage by residents of Belgium, Canada, the Netherlands, South Africa, and Spain, which are other jurisdictions that permit same-sex marriages. Whether residents of other countries may be able to formalize same-sex marriages in Massachusetts depends on the standards articulated in Cote-Whitacre.

2. Recognition of Foreign Marriages, Civil Unions, and Domestic Partnerships.

a. Marriages. Massachusetts generally adheres to the American conflicts rule that recognizes as valid foreign marriages that were valid by the law of the place of celebration unless the marriages violate the strong public policy of Massachusetts. Commonwealth v. Lane, 113 Mass. 458 (1873) (post-divorce remarriage); Medway v. Needham, 16 Mass. 157 (1819) (interracial marriage). Because Massachusetts authorizes same-sex marriages under its own internal law, the state will almost certainly recognize same-sex marriages that are validly celebrated elsewhere, as in Canada.

Massachusetts’ Evasion Act declares “null and void” any marriage formalized in another jurisdiction by residents of Massachusetts if the marriage is “prohibited and declared void” by Massachusetts’ own internal law. Mass. Gen. Laws Ann. ch. 207, sec. 10. Because Massachusetts internal law authorizes same-sex marriages, this provision would presumably not apply to same-sex marriages formalized by Massachusetts residents in, say, Canada. Moreover, although this provision is designed to prevent evasive marriages, it does not appear to apply to evasive marriages formalized by parties who are not Massachusetts residents. Instead, Massachusetts would presumably apply the default place-of-celebration rule and recognize as valid a same-sex marriage formalized, for example, in Canada by New York residents.

b. Civil Unions and Domestic Partnerships. What recognition Massachusetts may extend to foreign civil unions and domestic partnerships is unclear. Those legal statuses do not exist under Massachusetts law, but in Salucco v. Alldredge, No. 02E0087GC1 (Mass. Super. Ct. Mar. 19, 2004), 2004 WL 864459, at least one Massachusetts court recognized a Vermont civil union for the purpose of granting a petition for dissolution.

Laws & Regulations

Cases