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Let's cross the line

Equality does not end at any state line. That is why the state Supreme Judicial Court decision on gay marriage is not the last word on the legal rights of same-sex couples.

For six months, since the state's high court ruled that the Massachusetts Constitution prohibits discrimination against homosexual couples seeking to marry, opponents, including Democratic presidential candidate John F. Kerry, have framed gay marriage as a states' rights issue. It is not. It is a question of fundamental human liberty that ultimately will find its way to the United States Supreme Court.

The decision by Governor Mitt Romney and Attorney General Thomas F. Reilly to unearth a mothballed residency restriction to block the issuance of marriage licenses to out-of-state gay couples is as indefensible as laws in 38 states that would deny recognition to gay marriages performed here. The nation can no more endure a patchwork of state laws that withhold or grant marriage rights to homosexuals than it could abide Jim Crow laws that made black Americans second-class citizens in half of the United States.

It can only be desperation to hold back the tide of social justice sweeping the country on this issue that has prompted the Republican governor and Democratic attorney general to try to use a discredited 91-year-old statute to thwart the wedding plans of same-sex couples. Surely both men know that a gay couple denied a marriage license in the morning will be in court by afternoon, arguing that a residency requirement that has not been enforced in decades is being applied now only to target a particular class of people.

That is discrimination, however you parse the term, and it will not stand. Instead of aligning himself with the governor's transparent attempts to endear himself to the Bush administration, Reilly ought to be supporting legislative efforts to repeal the 1913 law that was adopted as a sop to those Southern states that did not want to recognize interracial marriages performed in Massachusetts.

Romney, a gay-marriage opponent who has warned that the SJC's decision will sow legal chaos once same sex marriages begin on May 17, is the one responsible for the confusion in city and town clerk offices across the Commonwealth.

The public should be as appalled as many of the clerks are. What is the difference between a town clerk in Massachusetts wielding a bogus residency requirement against a gay couple and a poll worker in Alabama wielding a so-called literacy test against an African-American voter? There is no difference, and, whatever one's view of gay marriage, no one should countenance such a bald political effort to undermine a judicial ruling.

Social change never happens overnight. The culture has been moving slowly but inexorably for a decade toward legal recognition of the rights of same-sex couples. It is only the pace of events since the US Supreme Court struck down an antisodomy law in Texas last June and the Massachusetts Supreme Court endorsed gay marriage last November that seems so breathtaking.

A certain caution is understandable among gay rights advocates, anxious not to alienate potential supporters by pressing for too much too soon. But it is past time to reject the notion that something as fundamental as personal liberty is a matter to be decided state by state, by ballot or legislative initiative.

Supreme Court Justice Antonin Scalia was right last June when he posed a basic question in his bitter dissent to the court's 6-3 decision striking down a Texas antisodomy law. If the majority is right, he wrote, "what justification could there possibly be for denying the benefits of marriage to homosexual couples?" Before long, he and his colleagues are bound to be asked to answer that question for the nation.

Eileen McNamara is a Globe columnist. She can be reached at

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