but not in the expected way. here’s how:
the massachusetts supreme court recognized the right of people to same-sex marriage.
the general rule is that any two people can get married. for a marriage to be improper, it must fall under a specifically enumerated prohibition, such as incest, polygamy, nonage (i.e. someone was under 18), etc.
the prohibitions on incest are listed in M.G.L. c. 207, sections 1 and 2. they state:
***
Chapter 207
Section 1. Marriage of man to certain relatives
No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister.
Section 2. Marriage of woman to certain relatives
No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.
***
(notice the double standard in these laws? probably not. but there is one, which you might find if you read carefully.)
the legislature, not anticipating gay marriage, only prohibited opposite-sex incestuous relationships. so based on the laws on the books, incestuous *gay* marriage is currently permitted…
if not amended legislatively, this could lead to one of two interesting situations.
situation 1:
an opposite-sex, incestuous couple could challenge the incest provisions on equal protection grounds, arguing that the law discriminates against straight people by prohibiting them the incestuous marriage that gay people are permitted. they would have a strong case, and would meet their burden of proving that the government lacks a rational basis for the discrimination (especially in the wake of goodrich, the case that legalized same-sex marriage).
that would leave the court three options: strike down the prohibitions against straight incestuous marriage; create a new restriction against gay incestuous marriages; or punt and give the legislature 180 days to come up with a solution. the most likely scenario is also the most boring one: they will punt like the saskatchewan roughriders on third and long.
situation 2:
a same-sex incestuous couple is prosecuted under M.G.L. c. 217 s. 17. they argue that their act was not incestuous because it is not within the definition of incest in c. 207. very likely they are acquitted, because they committed a crime which, while obviously within the intent of the statute, is not in the text, and therefore they cannot be found guilty, by the rule of lenity. presumably the court cannot create a new common law “gay incest” crime (i assume the legislature has a monopoly on defining new crimes). so then it’s up to the legislature to ban incestuous gay marriage if it wishes to.
the bottom line: one way or another, sooner or later, incestuous gay marriage will be banned by the legislature. so act now, while the window of opportunity is open!
Tags: gay rights