Massachusetts is totally gay (Part 2)

March 30, 2006

I just blogged about what I like about a recent ruling on the same-sex marriage debate in Massachusetts. I think they’re *kind of* on the right track. But, as promised, I’m going to tell you why I think the same ruling is a crock of shit. Basically, Massachusetts has decided that they want to be trendy enough to accept same-sex marriage, but god forbid they have to actually stand up for it as an inalienable right. They want to bandwagon the Brokeback-Mountain hipness, but they don’t want to accept any of the responsibility that goes along with politically unpopular ideas.

Fuck you, Massachusetts:

Massachusetts has made its own law regarding marriage wholly subordinate to every other state, within its own borders - on the grounds that other state’s laws must be respected abroad, if you will.

If two michigan citizens engage in the conveyance of a Massacuusetts property, Michigan cannot purport to supplant Massachusetts real-estate law and claim jurisdication over the warranty. Likewise, Massachusetts would be foolish to insist that two Michiganders cannot engage in real-estate transactions within Massachusetts, because Michigan real-estate law differs in some respects. But when the problem is marriage, it is not a tangible product like real estate. But it remains a covenant between two individuals - a covenant that the individuals carry with them everywhere, it is a bond that cannot be severed. (Yes, I’m aware that 50% of them end in utter failure, but gimme a break here)

The problem then, is one of jurisdiction. There is no prurient interest for any state to concern itself with contracts forged outside its borders, EXCEPT to assist in the enforcement thereof. A performance contract, a purchase agreement, a promissory note — these are all the tangible representations of intangible claims - and they are enforced under a certain jurisdiction, namely, the jurisdiction under which they were executed. This does not depend in any manner on where the obligor is currently residing. By such logic, one could make voidable any contract, simply by moving to a State where the laws governing such transactions varied from those where the contract was made. Accordingly, it is specious reasoning to claim jurisdiction over marriage contracts based on current residence of the contractors.

The governments proper role is as a vehicle through which contractual obligations are enforced when other means fail. It follows that the State’s only conceivably legitimate interest with regards to marriage, is perhaps to enter into reciprocity agreements with the several states, guaranteeing that they will provide for the enforcement of contracts forged outside of their borders. This would not be unlike extradition agreements. In this way, State sovereignty remains. No State would ever be forced to provide same-sex-marriage - they would only be required to enforce and recognize the underlying contract, and the rights of those bound by it.

see also: When Marriage is Outlawed, Only Outlaws Will be Married and for an amusingly sarcastic take, Why Gay Marriage is Wrong.


Comments

2 Comments so far

  1. KipEsquire March 30, 2006 2:56 pm

    Your first post was better.

    Let me propose an alternative perspective: The taxpayers of Massachusetts, who fund the courts and the municipal clerks and such, are not required, either as a matter of law or of common decency, to provide a forum for non-residents to get married in.

    Massachusetts does not owe Michiganers a marriage certificate any more than it owes them a welfare check.

  2. doinkicarus March 30, 2006 4:13 pm

    You’ve got a good point - I’ll admit it was hastily written, but I think there is a generally legitimate objection. I’ll try to come up with something better in response, later.

    Keep me on my toes.

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