By Lisa Keen
BOSTON – A trial court in Boston ruled on Sept. 29 that there is nothing in the law of Rhode Island to justify having Massachusetts refuse to issue marriage licenses to same-sex couples from the neighboring state.
The development is a dramatic step forward for equal marriage rights for gays because it means gay couples in two states are now able to obtain marriage licenses. The only question is whether Rhode Island couples who marry in Massachusetts will be able to obtain the same benefits of marriage that straight couples in Rhode Island are able to obtain through marriage.
Meanwhile, something odd seems to be happening with voters around the country concerning equal marriage: They're not as stridently against it as recent history would predict.
Immediately following the ruling, Massachusetts' Democratic Attorney General Tom Reilly issued a statement saying his office would neither appeal nor seek to postpone the effect of the ruling. Massachusetts' Republican Governor Mitt Romeny asked Reilly to appoint someone from his office to press an appeal, but Reilly has refused a similar request from the governor in the past and, at deadline, there was no indication that he intended to grant the governor's request this time.
"This case has always been about respecting the laws of other states," Reilly said in a statement.
Meanwhile, Rhode Island's Democratic attorney general Patrick Lynch told reporters that it would be up to the legislature or the courts to determine whether marriage licenses obtained by same-sex couples in Massachusetts would be recognized by the government of Rhode Island. The Rhode Island legislature is adjourned until January. A spokesperson for Republican Governor Donald Carcieri, who has spoken against equal marriage rights, predicted the state would not provide equal recognition to married same-sex couples.
The ruling came in a second round of litigation that sprung out of the Massachusetts supreme court's 2003 landmark ruling that same-sex couples should have the same rights as straight couples in obtaining marriage licenses. After that initial ruling, the Romney administration refused to issue licenses to couples from any state other than Massachusetts. It did so using a law enacted in 1913 to obstruct interracial marriages.
That prompted Gay & Lesbian Advocates & Defenders to file a second lawsuit on behalf of out-of-state couples in six New England States. The Massachusetts Supreme Judicial Court ruled in that suit that the state could legitimately refuse to issue licenses to same-sex couples from states which had a law prohibiting same-sex marriage. It also said that four of the six states – Connecticut, Maine, New Hampshire, and Vermont — had such laws. But at the time of the ruling in March, the court said the laws in New York and Rhode Island were not so clear cut.
New York became clear cut in July, when its state Supreme Court ruled that there were no constitutional provisions to treat same-sex couples equally with heterosexual couples concerning marriage licenses in that state.
In ruling on Rhode Island's law, Suffolk County Superior Court Judge Thomas E. Connolly said there had been no constitutional or statutory law and no court decision in Rhode Island that "explicitly deems void or otherwise expressly forbids" same-sex marriage.
Attention to same-sex marriage is percolating in the public mind's in many other states right now. In some states, courts are ruling on the matter. And in nine states, voters are considering whether to amend their constitutions to ban same-sex marriage (and in some of those states, ban any legal recognition of same-sex relationships).
The ballot initiatives are no surprise: November is mid-term elections for Congress and Republicans – who used anti marriage initiatives to attract reluctant right-wing voters to the polls in 2004 — are deeply worried about losing a significant number of seats this year.
But the surprise is that polling shows a much closer vote on the marriage issue in these states and in states where the issue could soon go to the ballot boxes.
In staunchly conservative Virginia, for example, a polling firm found recently that only 54 percent of those surveyed support a constitutional ban on same-sex marriage in that state – down two points from just two months ago.
In Colorado, a poll last week found that only 52 percent of registered voters surveyed were ready to support Amendment 43, which seeks a constitutional ban on same-sex marriage. And 58 percent said they would vote for Referendum 1, which would allow gay couples to obtain many of the legal rights of marriage through a domestic partner registry with the state. The survey was conducted by the Rocky Mountain News and CBS.
Even in states that have passed constitutional amendments to ban same-sex marriage, the fight over equal rights for gay couples continues unabated.
Witness Alaska. In 1996, the state legislature passed a law prohibiting the issuance of marriage licenses to same-sex couples. Two years later, voters approved an amendment to the state constitution to do the same.
But last year, in a unanimous ruling, the state supreme court ruled that denying gay state employees with partners the same benefits as heterosexual employees with spouses violates the state constitution's guarantee of equal protection. The high court ordered the state to create a policy of providing equal benefits to gay state employees – a ruling similar to that of the Vermont Supreme Court that prompted the legislature to create "civil unions."
The 2005 Alaska Supreme Court ruling overturned a ruling by Superior Court Judge Stephanie Joannides of Anchorage. Ironically, it was Joannides who issued last month's ruling saying that the state's solution to the supreme court's order was inadequate.
What the state came up with, in response to the supreme court order, was a policy requiring gay state employees to swear out an affidavit every year, declaring that they and their partner have been in an "exclusive, committed and intimate relationship" for at least a year.
Judge Joannides noted that the state does not make have the same requirement for heterosexual employees.
"Requiring same-sex partners to file annual affidavits reaffirming their relationship, where they have already attested to the long-term and intimate nature of that relationship, seems excessively burdensome and not substantially related to administrative efficiency," wrote Joannides.
After a long and significant string of losses this year on the marriage equality front, particularly in court, it is far too soon to know whether judges and voters are getting used to the idea that gay people have relationships. It may be that voters are simply getting wise to Republicans crying "Wolf!" on the issue. Whatever the case, it is growing increasingly difficult to predict which way the winds are blowing on equal rights in marriage.
