You Heard It Here First

Wednesday, March 02, 2005

You Heard It Here First

Professor Joanna Grossman, who specializes in both family law and anti-discrimination law, offers a thought-provoking article about the upcoming case in the Massachusetts SJC about whether out-of-state, same-sex couples can get married in the commonwealth--or, as Gov. Mitt Romney puts it more colorfully, whether Massachusetts will become "the Las Vegas of same-sex marriage."

I previously opined that the SJC is unlikely to strike down the ban on out-of-staters. But Professor Grossman makes a couple of points that cast doubt on my initial intuition. Most interesting is something I hadn't thought about (but should have): the Privileges and Immunities Clause. Broadly speaking, this forbids states from treating out-of-staters worse than in-staters without a good reason. When fundamental rights are involved, it has to be a very good reason. Is the right to marry fundamental? Pass the popcorn.

I'm still sticking with my prediction that the SJC will uphold the law, but I'm not very sure about it at all.

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