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Massachusetts General Laws Chapter 207, Section 11, more commonly known as the 1913 law, is a law in the Commonwealth of Massachusetts related to marriage. It is located in Part II, Title III of the General Laws of Massachusetts.

Contents 1 Text 2 History 3 Legal Challenges 4 References

Part II. Real and Personal Property and Domestic Relations

Title III. Domestic Relations

Chapter 207: Marriage

Certain Marriages Prohibited

Section 11. Non-residents; marriages contrary to laws of domiciled state

Section 11. No marriage shall be contracted in this commonwealth 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, and every marriage contracted in this commonwealth in violation hereof shall be null and void. Mass. Gen. L. ch. 207, § 11 (2005)^[1]

Massachusetts State Senator Harry Ney Stearns sponsored the 1913 Law on March 7, 1913. The bill was signed three weeks later by Governor Eugene N. Foss. No record of the state Senate debate has been found, so the motivation for the law is unknown.

Some legal experts have argued that the original purpose of the legislation was to block interracial couples from states that banned interracial marriages from going to Massachusetts to get married. Most states prohibited interracial marriage in 1913, but Massachusetts had legalized interracial marriage in 1843. These experts note that the law was enacted at the height of a public scandal over black heavyweight boxer Jack Johnson's interracial marriages and suggest that the law was partially a reaction to the Jack Johnson affair.^{[2] [3]} Introduction of the Anti-Miscegenation Amendment to the Constitution into the House of Representatives in 1911 sparked a movement among state legislatures to address interracial marriage. By 1913, half of the 20 states that lacked anti-interracial marriage laws introduced legislation banning the practice. The Massachusetts law was enacted during that time period.

On the other hand, Massachusetts Attorney General Thomas Reilly and others in the Attorney General's office have stated that the law had nothing to do with race.^[4].

Following the Supreme Judicial Court's decision in Goodridge v. Department of Public Health (2003), and the legalization of gay marriage in May 2004, the law was resurrected by state officials after several decades during which it had not been enforced. The intent in this second wave of enforcement was to ensure that same-sex couples who did not have an intention of living in Massachusetts once they were married were not issued marriage licenses by the Commonwealth's town and city clerks. Attorney General Tom Reilly would later include in a brief his position that enforcing the law was Massachusetts's way of respecting other states that have banned such marriages.

The renewed implementation of the law was almost immediately challenged by eight same-sex couples from outside Massachusetts and by 13 Massachusetts city and town clerks who argued that they were being turned into "agents of selective enforcement." The challengers argued that the law violates the equal protection provisions of the state's constitution and the United States Constitution. Massachusetts Superior Court Justice Carol Ball, ruled that the law was not unconstitutional, as it was being applied equally to both hetero- and homosexual couples.

On March 30, 2006, the Supreme Judicial Court upheld the application of the law as it applies to marriages of same sex couples in a complex decision, Cote-Whitacre v. Department of Public Health ^[5], with three concurring decisions filed and one dissenting vote. The court sent the New York and Rhode Island couples' cases back to the superior court judge, asking the judge to determine whether same-sex marriage is expressly prohibited in those states. It denied the claims of the clerks and all the other couples.

1. ^ General Laws of Massachusetts Chapter 207 Section 11
2. ^ Boston Globe - History Suggests Race was the Basis - May 21, 2004
3. ^ Boston Globe - SJC Hears Challenge to Marriage Law - October 7, 2005
4. ^ [1]
5. ^ Cote-Whitacre v. Department of Public Health, 844 N.E.2d 623 (Mass. 2006) - SJC decision upholding 1913 law

• CNN.com - Gays fight marriage residency law - Oct 6, 2005 is a dead link; use the Internet Archive link instead
• Findlaw.com - Will the State of Massachusetts Ever Permit Same-Sex Out-of-Staters to Marry? A New Decision From the State's Highest Court Leaves Open The Possibility - April 10, 2006