(dissenting). I write separately for five reasons. First, I believe that an appellate court must use a neutral, principled approach to decide every case before it. Second, the court articulated such a neutral, principled approach in Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Goodridge), holding that the liberty and equality provisions of the Constitution of Massachusetts prohibit the use of gender distinctions with respect to marriage. Third, Goodridge removed gender as an impediment to marriage (just as Loving v. Virginia, 388 U.S. 1 [1967], removed race as an impediment), and I believe that the rule of gender neutrality applies to the entire marriage statute. Fourth, principles of comity do not require rejection of the marriage license applications of nonresident same-sex couples. Finally, the Commonwealth’s resurrection and selective enforcement of a moribund statute, dormant for almost one hundred years, not only violates the “spirit” of Goodridge, as stated by the judge below, but also offends notions of equal protection. It is, at its core, fundamentally unfair.
Neutral principles. Because Goodridge made new law, I recognize that analytical tools to help us navigate the unchartered waters we now travel are few. However, we are not without any analytical framework to assist us.
I begin with Professor Herbert Wechsler, acclaimed professor, lawyer, and constitutional scholar, who authored Toward Neutral *396Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).1 He made the observation that “courts in constitutional determinations face issues that are inescapably ‘political’ ... in that they involve a choice among competing values or desires, a choice reflected in the legislative or executive action in question, which the court must either condemn or condone.” Id. at 15.2 As Professor Wechsler explained, even in the face of such choices, an appellate court must attempt to employ a well-reasoned and principled approach to each case it decides. Further, he noted, “[a] principled decision ... is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.” Id. at 19.
The normative framework this court has endeavored to employ is one that “blend[s] methodologies such as textual analysis, history, common law, structural difference, and comparison to other states” to reach a decision that is, at all corners, grounded in neutrality and uninfected by values or bias. Ireland, How We Do It in Massachusetts, 38 Valparaiso U. L. Rev. 405, 409 (2004). This is the hallmark of judicial interpretation. Indeed, as the plurality decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 865-866 (1992), declared:
“[A] decision without principled justification would be no judicial act at all. . . . The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”
*397The Goodridge decision presented such “principled justification,” and yielded a neutral rule that applies in this case.
The Goodridge case. Before our landmark ruling in Goodridge, the marriage statute prevented same-sex couples from marrying in the Commonwealth. In Goodridge, we stated that “[f]ar from being ambiguous, the undefined word ‘marriage,’ as. used in G. L. c. 207, confirms the General Court’s intent to hew to the term’s common-law and quotidian meaning concerning the genders of the marriage partners.” Goodridge, supra at 319. We did not need to reach the issue whether heightened scrutiny applied to the gender limitation in the marriage licensing statute because it failed to meet even a rational level of review. See id. at 331 n.21. See also Opinions of the Justices, 440 Mass. 1201, 1206-1207 n.3 (2004). Therefore, contrary to what is being suggested by Justice Spina today, see ante at 370-371 (Spina, J., concurring),3 the issue whether heightened scrutiny applies where the right of same-sex couples to marry is affected is not settled. Further, we did not reach the question whether the Massachusetts State Constitution contains a right to marry, nor did we find that G. L. c. 207 could be “construed to permit same-sex couples to marry.” Goodridge v. Department of Pub. Health, supra at 320. But see id. at 345 (Greaney, J., concurring) (marriage is “a fundamental right that is protected against unwarranted State interference”). Instead, the court held that limiting civil marriage to opposite-sex couples lacks a rational basis and “violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.” Id. at 342. See Opinions of the Justices, supra at 1208 (creation of civil unions impermissible under Massachusetts Constitution). Rather than strike down the marriage laws, however, we redefined the common law and “construe[d] civil marriage to *398mean the voluntary union of two persons as spouses, to the exclusion of all others.” Goodridge, supra at 343.
Like Loving v. Virginia, supra, before it, Goodridge took a personal characteristic that goes to the essence of who someone is (race and gender, respectively) and removed it as an “impediment” to marriage.4 See P. Wallenstein, Tell the Court I Love My Wife 240 n.29 (2002)5 (“What Loving did was to remove racial identity as a condition that a state might impose. The decision did nothing to diminish states’ authority to regulate incest, bigamy, age of consent, or same-sex marriages”). See also Koppelman, Same-Sex Marriage and Public Policy: The Miscegenation Precedents, 16 Quinnipiac L. Rev. 105, 109 n.13 (1996)6 (noting that after the Supreme Court of Hawaii invalidated statute prohibiting same-sex marriage as sex discrimination, it is still sex discrimination to require only nonresidents to provide proof of Hawaii residence). Civil marriage in Massachusetts prohibits the use of gender to reject the marriage license applications of any persons who satisfy all other legal requirements, such as age, consanguinity, and divorce. See Goodridge, supra at 343-344 (leaving intact the Legislature’s broad discretion to regulate marriage).
Moreover, because Goodridge’s discussion of marriage was based on “the undefined word ‘marriage’ as used in G. L. c. 207,” id. at 319, it logically follows that Goodridge’s redefinition of civil marriage applies to the entire marriage statute (G. L. c. 207). See id. at 343, and cases cited (“established principles of jurisprudence empowerf] a court to refine a *399common-law principle in light of evolving constitutional standards”). A principle, inconsistently applied, is not a principle at all; it is discretion, and amounts to little more than ad hoc adjudication. Thus, I beheve our law is settled.
As a matter of State constitutional law, Massachusetts prohibits the use of gender in reviewing the marriage license application of any person. See id. Instead, marriage licenses must now be issued on a gender-neutral basis. See id. at 341 (finding civil marriage ban unjustified and “starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children”). Here, as Justice Spina notes, “[t]he clerks were specifically instructed by the registrar that ah apphcants should be treated equally regardless of their race, creed, age, or sexual orientation.” Ante at 377 (Spina, J. concurring). Since Goodridge, the only relevant inquiries are whether there are “two willing spouses,” and, if so, whether any of the listed impediments apphes. Therefore, to the extent that G. L. c. 207 serves a gatekeeping function, gender may never be used to prevent a couple from marrying, because gender is no longer an impediment to marriage in Massachusetts. Under the present scheme, however, the marriage apphcation unnecessarily asks apphcants their gender, and then clerks impermissibly use this information to trigger mandatory action against nonresident marriage apphcants. It is the latter use of the gender of the parties applying for a marriage license that circumvents the principle of gender neutrality established and carefully defined in Good-ridge, supra, and misapplies our holding in that case.7
The present procedure allows the State to continue to *400discriminate against our nonresident neighbors with whom, like the “members of our community, our neighbors, our coworkers, [and] our friends[,] . . . [w]e share a common humanity . . . .” Id. at 349 (Greaney, J., concurring). This discrimination is no less harmful or unconstitutional than that which we rejected in Goodridge. See Opinions of the Justices, supra. Andrew Koppelman, discussing Baehr v. Lewin, 74 Haw. 530 (1993), explained it as follows:
“If it is sex discrimination for Hawaii registrars to deny marriage licenses only to same-sex couples, then it is sex discrimination for Hawaii registrars to require only same-sex couples to provide proof of Hawaii residence. To see the problem, imagine that someone had suggested, after the California Supreme Court invalidated that state’s prohibition of interracial marriage, see Perez v. Lippold, 198 P.2d 1 (Cal. 1948), that California permit interracial marriage only for members of its own community. Such a policy would have required California registrars to continue to discriminate on the basis of race, which the court had just construed the state constitution to forbid” (emphasis added).
Koppelman, supra at 109 n.13. As in Goodridge, here there is no rational basis for such discriminatory treatment of couples applying to marry.
Because I believe our law regarding gender and marriage licenses is settled, my discussion could end here. However, I am also troubled by my colleagues’ analysis of the comity and selective enforcement issues raised by the plaintiffs.
Comity. Although much time has been devoted to the issue of comity, the question whether other States will give effect to Massachusetts marriages is not before the court.8 However, speculation as to the answer to that question is precisely what my colleagues’ approach to comity requires. I do not believe *401that a discussion of comity is necessary in this case, where it is our marriage law that we are interpreting. Furthermore, even if comity applied to this case, our settled law prevents its application in the way now suggested.
As Justice Spina notes, “[t]he notions of comity demanded by our Federal system require us to concede that the courts of our sister States, even when they reach a different decision than we would have, are endowed with an equal measure of wisdom and sympathy.” Ante at 369 (Spina, J., concurring), quoting Delk v. Gonzalez, 421 Mass. 525, 530 (1995). Comity is a voluntary endeavor engaged in by a State, and where a State’s public policy is implicated, comity does not apply. See Pacific Wool Growers v. Commissioner of Corps. & Taxation, 305 Mass. 197, 209-210 (1940); Perkins v. Perkins, 225 Mass. 82, 86 (1916). Thus, at the outset, it should be clear that Goodridge forecloses application of other States’ discriminatory marriage laws in the Commonwealth, because such discrimination is against our public policy. However, Justice Spina turns this concept on its head and appears to ground his reasoning, at least in part, on the notion that if we import the discriminatory laws of other States into our marriage statute, those same discriminating States will somehow, applying the principles of comity, recognize the marriages of Massachusetts same-sex couples who choose to move to the discriminating State, stating, for example:
“By giving respect and deference to the legislative enactments and public policy pronouncements of other jurisdictions, it is my hope [and rational and hopeful for the Commonwealth to believe] that principles of comity will have a significant impact on other jurisdictions if, and when, confronted with the issue whether to recognize validly contracted same-sex marriages of Massachusetts couples, even where these couples would not be able legally to marry in such other jurisdictions” (emphasis added).
Ante at 369, 373 (Spina, J. concurring).
This rationale for barring nonresident same-sex couples from marrying in Massachusetts is also problematic because it *402requires making several assumptions regarding each nonresident same-sex couple that applies to marry and, in every case, it presumes a negative result as to the validity of the requested marriage. To answer the questions whether the marriage would be “void” if contracted in the applicants’ home State, or if the nonresident same-sex couple is “prohibited from intermarrying” by the laws of the applicants’ home State, the court assumes, ab initia, that if the nonresident same-sex couple obtains a marriage license in Massachusetts, the couple will return home; the couple will at some point seek to have the home State recognize the marriage9; and the home State will refuse to recognize the couple’s same-sex marriage.
Regarding the final assumption, Justice Spina’s concurrence suggests that it is permissible for the executive branch, as if looking through a crystal ball, to predict the effect of the Massachusetts marriage in the sister jurisdiction as to all of the couple’s rights and incidents of marriage. A reviewing clerk is then permitted, indeed, required, to use this prediction to prevent the marriage at its very inception. Relying on these assumptions, where the question ultimately answered is whether other States will give effect to a same-sex marriage performed in Massachusetts, is the foundation of Justice Spina’s comity discussion. However, as even Justice Spina acknowledges, the question of the effect of a Massachusetts marriage is not now before the court. See ante at 363 (Spina, J., concurring). See also Goodridge, supra at 340; Opinions of the Justices, supra at 1208-1209. Therefore, speculation as to its answer cannot serve as a rational basis for barring nonresident same-sex couples from marrying in the Commonwealth. Moreover, the series of assumptions and analytical tools used by Justice Spina today overlook the complexity of comity as it applies to marriage.
The truth is, we simply do not know how, or whether, other jurisdictions will recognize same-sex marriages performed in Massachusetts. Other States will, of necessity, make determina*403tians as to the validity of same-sex marriages on a case-by-case basis,10 and likely quite soon, given the mobility of our modem society. Where the public policy of another jurisdiction prohibits the recognition of same-sex marriage, it is unclear whether Justice Spina’s declaration of “hope” announced today will trigger recognition of a Massachusetts same-sex marriage performed for Massachusetts residents. Ante at 369 (Spina, J., concurring). Also, with respect to nonresident same-sex couples who marry in Massachusetts, no one can accurately predict the circumstances in which another jurisdiction may elect to give effect to an incident of a same-sex marriage performed here.11 We would fare much better by interpreting our own marriage *404statutes, rather than wading into the complexities of the marriage laws and public policies of other States.12
If comity means anything at all, it means that other States must engage in a reasoned analysis when determining the validity of marriages performed in Massachusetts. It does not require the speculation Justice Spina’s concurrence announces. The expressed “hope” that other States will recognize marriages performed here cannot serve as a rational basis.13 Contrary to what Justice Spina’s concurring opinion asserts, see ante at 369, “hope” is an irrational adjudicatory principle. “Hope” lacks any predictive quality and is not grounded in our jurisprudence. We have declared that there is no rational basis to prevent same-sex couples from marrying in the Commonwealth, and although our “Constitution cannot control such prejudices!,] neither can it tolerate them.” Goodridge, supra at 341-342. What is essential for this court is that our understanding of the meaning of marriage remain consistent with the holding in Goodridge.14
Perhaps even more fundamental, principles of comity as they *405interact with the liberty provisions of our Constitution do not permit the approach taken by my colleagues today. Indeed, in Opinions of the Justices, supra at 1208, we addressed a similar comity-type theory proffered by Justice Sosman in her separate opinion, stating that even if deference to other jurisdictions could justify creating civil unions for same-sex couples, we “would remain unpersuaded.” Reiterating our Goodridge holding, the court stated that “[o]ur concern ... is with the Massachusetts Constitution as a charter of governance for every person properly within its reach.” Id., quoting Goodridge, supra at 312.
This court has held that comity does not limit the application of liberty rights found in the Constitution of Massachusetts to Massachusetts residents. However, Justice Spina dismisses the holding in the still applicable case, Commonwealth v. Aves, 18 Pick. 193, 217 (1836), stating that §§ 11 and 12 restrict the rights of nonresidents to marry in Massachusetts. Ante at 369. But this argument begs the question. In my view, the import of the Aves case has to do with the extension of a protection (liberty), offered by the Constitution of the Commonwealth, to Med, a nonresident (a child and a slave from Louisiana), who traveled to the Commonwealth. At the time the Aves case was decided, slavery was sanctioned by the Constitution of the United States. It recognized a slave only as three-fifths of a person for purposes of counting the population for representa*406tian in the House of Representatives in the slave-holding States, art. I, § 2, third par., and it required the return of fugitive slaves, art. IV, § 3. See art. I, § 9 (allowing States to import slaves until 1808). In the Aves case, the court acknowledged the state of the law in the United States. Nevertheless, the court gave Med her freedom when she came to the Commonwealth and ordered her into temporary custody until a guardian could be appointed, stating: “[S]lavery ... is contrary to natural right, and repugnant to numerous provisions of the [Massachusetts] constitution and laws, designed to secure the liberty and personal rights of all persons within its limits and entitled to the protection of the laws.” Commonwealth v. Aves, supra at 217. Although the court was not called on to inquire about Med’s status if she returned to Louisiana, it concluded that “if the slave waives the protection of [the Commonwealth’s] laws, and returns to the state where he is held as a slave, his condition is not changed.” Id. at 218. Despite this conclusion, the court granted her the protection afforded citizens of Massachusetts. The Aves case established the principle that a liberty or right under the Constitution of Massachusetts that is available to citizens of Massachusetts can be extended to others who travel here from other States, regardless whether their home States deny them those same rights. Justice Spina’s opinion ignores the import of the Aves case and creates a second class of persons who seek full protection and enjoyment of the laws of the Commonwealth, quite simply, to marry without the burden of invidious discrimination.
As Chief Justice Marshall points out, under Justice Spina’s broad interpretation of the marriage licensing statute, the executive branch would be permitted “to act as the final arbiter of the penumbras of another State’s ‘continually evolving’ common law on same-sex marriage, and only same-sex marriage, see ante at 361 (Spina, J., concurring),” and the Commonwealth would be able to “cherry-pick the pronouncements as to same-sex marriage to which it will give credence.” Ante at 384 (Marshall, C.J., concurring). Despite her disagreement with Justice Spina regarding the interpretation of G. L. c. § 12, Chief Justice Marshall’s analysis of principles of comity produces the same result of preventing otherwise qualified same-sex couples from *407marriage; it permits the discriminatory gender impediments of other States’ laws to be read into G. L. c. 207. See ante at 390 (Marshall, C.J., concurring). My colleagues’ opinions contradict our established law, ignore the principle of comity established iri the Aves case, and effectively create a moving target.
“The genius of our Federal system is that each State’s Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the Fourteenth Amendment, each State is free to address difficult issues of liberty in the manner its own Constitution demands.” Goodridge, supra at 340-341. We know how our marriage statute should be interpreted, and this should be the guidepost to our decision. As the court established in the Aves case, no matter how difficult or politically divisive the issue, comity cannot provide a rational basis to offend the equality and liberty principles of the Massachusetts Constitution.
Selective enforcement. As to the plaintiffs’ selective enforcement claim, Justice Spina avoids the question by stating that the law applies equally to all persons who apply for a marriage license. See ante at 377. This assertion is disingenuous. As Justice Greaney stated in his concurring opinion in Goodridge, supra at 346-347:
“The equal protection infirmity at work here is strikingly similar to (although, perhaps, more subtle than) the invidious discrimination perpetuated by Virginia’s antimiscegenation laws and unveiled in the decision of Loving v. Virginia, [388 U.S. 1 (1967)]. . . . That our marriage laws, unlike antimiscegenation laws, were not enacted purposely to discriminate in no way neutralizes their present discriminatory character.”
These statutes are being selectively enforced with animus.
It is not disputed that same-sex couples are more affected by the gender inquiry than heterosexual couples.15 See ante at 370 *408(Spina, J., concurring) (recognizing that “the brunt of §§ 11 and 12 has inevitably fallen disproportionately on nonresident same-sex couples, rather than on nonresident opposite-sex couples”). Indeed, after Goodridge, the Department of Public Health added sex of the parties to the notice of intention to marry,16 and moved away from a more discretionary system where an oath to the clerks that there were no impediments to marry was all that was required by the parties seeking to marry, to one where documentation of the parties’ residence is required to receive a marriage license, and the sex of the parties can trigger a refusal to grant it. For example, the record contains a 1995 letter from the registrar of vital records and statistics describing a clerk’s duties to review marriage license applications. The letter states:
“The Registry of Vital Records and Statistics urges each Massachusetts City or Town Clerk to adopt the following as standard procedures when taking a Notice of Intention of Marriage: Do not ask for proof of citizenship or legal status. ... Do not routinely ask for birth records or other proof of age. ... Do not . . . ask for proof of divorce.”
Further, the registrar stated that the oath taken by parties applying for marriage “affirms that the information they’ve provided is true to the best of their knowledge. . . . [I]t is not the clerk’s job to prevent them from committing perjury. Your job is to assist them in getting married.” There is also evidence in the record that, with respect to the impediments to marriage, clerks were simply instructed to point to a posted list of impediments and allow applicants affirmatively to respond whether any of the listed impediments was applicable.
After Goodridge, the clerks were issued a new set of instructions that essentially removed the discretionary aspects of the application review process. Clerks were advised to obtain documentation from applicants confirming their residence and where they intend to reside. Failure affirmatively to provide such documentation or otherwise to satisfy the clerk that there is no impediment to marriage will result in refusal to issue the *409marriage license. The impediment most likely to be applied is gender. If a clerk declines to reject the application, he or she will be subject to “enforcement action.” These modifications to the review process effectively rewrote the statute and erected an impermissible barrier to marriage.
Our decision in Goodridge explicitly removed gender as an impediment to marriage, and therefore these additional inquiries, although in and of themselves not discriminatory, are not required. The only perceivable rationale for the addition of sex to the form is that it is now being used to trigger an unconstitutional second level of review for same-sex couples. Residents of Massachusetts who marry nonresidents of the opposite sex face no such requirements. Nonresidents who marry nonresidents of the opposite sex face no such requirements. Under the new scheme, same-sex couples are not being treated as gender-neutral “couples,” which is what our common law requires. Instead, even though sex is no longer an impediment to marriage, nonresident same-sex couples are now illegally singled out precisely because of their gender. This is selective enforcement, and not permitted by our holding in Goodridge.17
I also note Justice Spina’s failure to address the issue of animus. See ante at 376. He avoids examining a significant part of the record.18 The changes to the notice of intention to marry were made in a heated political moment, where the Governor of *410the Commonwealth made open and numerous pronouncements to other States, through local and national media, expressing his strong disagreement with the Goodridge decision. See, e.g., One Man, One Woman, Wall Street Journal, Feb. 5, 2004, opinion page (urging readers to support “defense of marriage” legislation; “[b]eware of activist judges”; and support the passage of a Federal constitutional amendment to prevent gay marriage). Moreover, as Chief Justice Marshall points out, ante at note 1, the Governor wrote a letter to the Governors and Attorneys General of every State declaring that the Commonwealth of Massachusetts would not issue a marriage license to a nonresident same-sex couple without an “authoritative statement” from the couple’s State rebutting the Governor’s presumption that “same-sex marriage is not permitted under the laws of any other state in the nation.” In the letter, the Governor also explains that he filed emergency legislation that would allow him personally to address this court to seek a stay of Goodridge pending the resolution of a proposed constitutional amendment to limit marriage to one man and one woman.
It is no secret, then, that the changes to the notice were made to limit same-sex marriage to residents of Massachusetts. The additions to the marriage application essentially rewrite the rule regarding gender-neutral marriage that Goodridge established and require clerks to use the gender of nonresidents as an impediment to marry. It was done with animus, and it offends the equal protection doctrine. See Romer v. Evans, 517 U.S. 620, 634-635 (1996), quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (“a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest”).
Moreover, the Commonwealth’s resurrection of a moribund statute to deny nonresident same-sex couples access to marriage is not only troubling and, as the Superior Court judge stated, offends the “spirit” of Goodridge, but also is fundamentally unfair. This law has not been enforced for almost one hundred years, and certainly never with the vitriol currently on display. *411To use a law that has not been used for over one hundred years to deny same-sex couples access to marriage contravenes the public policy of this State to protect all persons, including homosexuals. We have seen this before, and we declared “history must yield to a more fully developed understanding of the invidious quality of the discrimination” before us. Goodridge, supra at 328. “One of the most important purposes to be served by the Equal Protection Clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of the government.” Hernandez v. Robles, 26 A.D.3d 98 (N.Y. 2005) (Saxe, J., dissenting), quoting People v. Santorelli, 80 N.Y.2d 875, 881 (1992). The Commonwealth’s resurrection of these statutes is deeply rooted in discriminatory notions of marriage, which we have soundly rejected.
In Goodridge, supra at 341-342 we declared:
“The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are . . . homosexual. ‘The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ Palmore v. Sidoti, 466 U.S. 429, 433 (1984). . . . Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.”
We are bound by our decision in Goodridge. Discrimination against same-sex couples, inasmuch as it occurs in the marriage statute, is, in my opinion, unconstitutional.
Conclusion. In sum, Goodridge's principle of gender neutrality in marriage licensing applies to the entire marriage statute, and principles of comity do not require rejection of nonresident *412same-sex marriage applications. The resurrection and selective enforcement of a moribund statute offend notions of equal protection and fundamental fairness.
However, far from applying the principle of gender neutrality and providing a “blueprint” to anyone regarding application of our marriage statutes, the concurring opinions ignore our redefined common law, and reconstruct the edifice of discrimination we dismantled in Goodridge. In doing so, the clock has been effectively turned back to the days when our common law defined marriage as one man and one woman. Therefore, I respectfully dissent.
A noted academician, former director of the American Law Institute, and legal giant, Herbert Wechsler was the Harlan Fiske Stone Professor of Constitutional Law Emeritus at Columbia University. He taught generations of law students at Columbia University School of Law, and he also authored several monumental works during his prolific career, including the seminal, Toward Neutral Principles of Constitutional Law, in 1959.
Professor Wechsler’s discussion on finding neutral principles to guide constitutional decisionmaking arose from his ongoing debate with Judge Learned Hand regarding the justification for judicial review of legislative and executive action. See Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
Today, a majority of the court affirms the denial of the plaintiffs’ motions for a preliminary injunction based on the statutes’ constitutionality as applied to the plaintiff couples. See ante at 371-373 (Spina, J., concurring); ante at 388-391 (Marshall, C.J., concurring) (disagreeing only with Justice Spina’s overly broad construction of G. L. c. 207, § 12). Because Justice Spina’s concurring opinion more fully addresses each of the plaintiffs’ arguments, and Chief Justice Marshall substantially agrees with Justice Spina’s analysis, in this dissent, I have primarily addressed Justice Spina’s opinion. Where appropriate, I note distinctions.
Race and gender as social constructs can be quite fluid and ambiguous. However, in this society, they are defining characteristics and are virtually immutable because they cannot easily be altered. See Kahn v. Shevin, 416 U.S. 351, 357 (1974) (Brennan, J., dissenting, with whom Marshall, J., joined); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (opinion of Brennan, J.).
In the context of Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Goodridge), the words “gender” and “sex” have been used interchangeably to mean the physiological “accident of birth” to which society assigns meaning. The language employed in this dissent is consistent with this usage.
Professor Peter Wallenstein teaches history at Virginia Polytechnic Institute and State University.
Professor Andrew Koppelman is a professor of law and political science at Northwestern University.
This case is not about discrimination against the couples because of their sexual orientation. The discrimination the couples have faced is not directly related to their conduct or status as homosexuals, but rather, it is because of their gender. However, as the defendants note and Justice Spina agrees, it is abundantly clear that homosexual couples are the couples most harmed by the gender impediment. See ante at 377-378 (Spina, J., concurring). Although we have not declared that discrimination against homosexuals triggers heightened scrutiny, it seems to me that the marriage laws, as interpreted by my colleagues, will work a devastating impact on a class of individuals that, at the very least, the public policy of the Commonwealth protects. See Goodridge, supra at 341 (noting Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation).
Indeed, Chief Justice Marshall agrees with this point, pausing “to emphasize that the relevant question in this case is not what another State might do when confronted with two of its citizens of the same sex who wish to marry.” Ante at 384 (Marshall, C.J., concurring). After this case, however, at least as to the New York and Rhode Island plaintiffs, a Superior Court judge interpreting G. L. c. 207, § 12, will be required to answer this question.
These assumptions do not contemplate that a nonresident same-sex couple may want to take advantage of some benefits in Massachusetts as a married couple, such as property ownership. Moreover, a nonresident same-sex couple may want a marriage license to symbolize the couple’s continued commitment to a stable, loving relationship, even if their home State does not recognize the marriage and the couple never asks their home State to recognize the marriage.
For example, courts have considered issues concerning same-sex partnerships in the context of child rearing that have led to de facto recognition of a same-sex relationship and a surviving partner’s right to rear a child bom within the relationship. See, e.g., In re Pearlman, No. 87-24926 DA (Fla. Cir. Ct. Mar. 31, 1989) (motion judge set aside grandparents’ adoption and granted surviving partner custody after interviewing the child who stated, in camera, “Like, for Christmas I don’t really want a present. All I want is to live with Neenie [the surviving partner]. That’s my Christmas present”).
Section 283(1) of the Restatement (Second) of Conflict of Laws (1971) states: “The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage . . . .” There may be any number of reasons a jurisdiction may decide to recognize an incident of marriage. For example, where failure to recognize a same-sex marriage affects the best interests of a child bom within the marriage or renders a former spouse within the marriage a ward of the State, the reviewing court may determine that recognition is necessary.
This issue of recognition has arisen before in the context of statutes or public policy barring miscegenation, polygamy, and adultery. States have recognized interracial and polygamous marriages, and marriages resulting from adultery, for various purposes. See In re Bir’s Estate, 83 Cal. App. 2d 256 (1948) (California public policy against polygamous marriage did not prohibit two wives from inheriting equal shares of their husband’s estate); Miller v. Lucks, 36 So. 2d 140 (Miss. 1948) (Mississippi’s antimiscegenation law did not prevent State’s recognition of interracial couple’s marriage for purpose of intestate succession); Lenherr Estate, 455 Pa. 225 (1974) (Pennsylvania’s public policy against marriages resulting from adulterous affairs did not prevent widow of such marriage from enjoying marital exemption to transfer inheritance tax).
Given their recent creation, there is little case law regarding the recognition of civil unions; however, in both Iowa and West Virginia, courts have recognized civil unions for the purpose of dissolution. See In re Marriage of Brown, Equity No. CDCD 119660 (Iowa Dist. Ct. Nov. 14, 2003); In re Mar*404riage of Gorman, Civil Action No. 02-D-292 (W. Va. Fam. Ct. Jan. 3, 2003). We simply cannot predict the myriad circumstances in which a Massachusetts same-sex marriage performed for a nonresident might be recognized, and it is overly simplistic to assert as much.
The attempt to resolve the issue of same-sex marriage for other jurisdictions is also misguided where many of the same residents seeking to marry here could easily travel to Canada to obtain marriage licenses. A quick Internet search reveals several sites dedicated to bringing American same-sex couples to Canada to marry because the Canadian marriage statute lacks any residency requirement. See S.C. 2005, c. 33, assented to July 20, 2005. See also Same-Sex Couple’s Lawsuit a Test of Tolerance in Ireland, Boston Globe, Dec. 30, 2005, at Al & A16, where two women who married in Canada now seek, for tax purposes, to have the Republic of Ireland recognize their marriage.
Moreover, given the globalization of the economy, States may soon be confronted with issues related to same-sex marriages performed in Spain, Belgium, the Netherlands, and the Republic of South Africa, where same-sex marriage is now permitted.
Justice Spina’s reasoning also ignores the current political climate, in which over one-half of the States have passed “Defense of Marriage” acts expressly forbidding the recognition of same-sex marriage and Massachusetts State officials have openly encouraged other States to pass such laws if they have not already done so.
I am also concerned by Justice Spina’s dismissive approach, ante at 363, to G. L. c. 207, § 13, which states: “The three preceding sections shall be so *405interpreted and construed as to effectuate their general purpose to make uniform the law of those states which enact like legislation.” We have no case law interpreting this section; however, a plain reading of the statute suggests that §§ 11 and 12 should only apply to the five States that have enacted “like legislation.” See ante at note 5 (Marshall, C.J., concurring) (omitting mention of § 13 in discussion of legislative history).
Justice Spina’s interpretation of §§ 11, 12, and 13 also ignores the relevant history of the uniform law. In 1943, thirty years after the Uniform Marriage Evasion Act was enacted, the Commissioners on Uniform State Laws withdrew the Act because it had the opposite effect of creating uniformity. Indeed, as the committee on review and revision of uniform and model acts concluded, “[t]he Uniform Act can be effective only if it has widespread adoption; otherwise it merely tends to confuse the law.” By failing adequately to interpret § 13, and construing §§ 11 and 12 to require the blanket prohibition of nonresident same-sex marriage, my colleagues resurrect the confusion of which the commissioners disposed over sixty years ago.
The defendants admit that the renewed enforcement of §§ 11 and 12 of G. L. c. 207 arose from the concern that given the broadening of our marriage statutes after Goodridge, same-sex couples from other States might seek to marry in the Commonwealth. Therefore, it is same-sex couples who are most affected by the renewed enforcement.
Sex of the parties was implicit in the former application, which designated “bride” and “groom.”
Although none of the plaintiffs presents this factual scenario, under the rule announced today, a resident of Massachusetts is not able to marry someone of the same sex from another State unless the nonresident decides to reside in Massachusetts. This is not a burden faced by a resident of Massachusetts who decides to marry a nonresident of the opposite sex, who would have the right to a so-called commuter marriage. Justice Spina cannot claim that the statutes, as he has construed them, afford equal protection to all residents of Massachusetts.
Chief Justice Marshall also avoids the issue of animus, noting that “[t]he disparate impact that aggrieves the plaintiff couples is the result of the intentional acts of other States, and not the Commonwealth’s decision to enforce its own facially neutral laws.” Ante at 391. As the record illustrates, all of the statutes that are the subject of this case, G. L. c. 207, §§ 10-13 and § 50, were resurrected by the Commonwealth to prevent nonresident same-sex couples from marrying in Massachusetts. I therefore also disagree with the Chief Justice’s conclusion that it is only the Commonwealth’s interpretation of G. L. c. 207, § 12, not the entire statutory scheme, that implicates the selective enforcement doctrine. See ante at 391-392 (expansive construction *410of G. L. c. 207, § 12, denies any nonresident opportunity to marry in Massachusetts, resulting in unequal enforcement).