By Lisa Keen
BOSTON – The Massachusetts Supreme Judicial Court has agreed to hear arguments this year on whether the state has a right to bar out-of-state gay couples from obtaining marriage licenses. This is the same court that ruled in November 2003 that the state constitution requires same-sex couples to be allowed to obtain marriage licenses. In May 2004, the court’s order in Goodridge v. Department of Public Health went into effect and, since then, more than 4,200 same-sex couples have married in Massachusetts.
Gay & Lesbian Advocates & Defenders, the law group which won the Goodridge decision, filed another lawsuit – this one on behalf of out-of-state couples. The lawsuit, Cote-Whitacre v. Department of Health, argued that state officials created a “list of impediments” to marriage that excluded all out-of-state same-sex couples.
Specifically, GLAD argued, the state dusted off a law from 1913 that states, “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.”
State officials cited existence of the law to ban all out-of-state same-sex couples from marrying in Massachusetts, even those from states which have not adopted any form of same-sex marriage ban.
GLAD’s lawsuit argues that the state’s application of the 1913 law violates the state and U.S. constitutions and it asks the court to issue an injunction to stop the state from barring marriage licenses to otherwise qualified out-of-state same-sex couples.
The lawsuit was filed on behalf of eight same-sex couples from six neighboring states. The case will be heard in conjunction with a similar lawsuit brought by 13 town clerks, Johnstone v. Reilly, which notes that, for many decades, the law was not enforced against out-of-state couples.
Last August, a superior court judge refused to issue the injunction but did not rule on the merits of the lawsuits. The state’s highest court agreed to take the cases without waiting for them to go through an intermediate appeals court.
The Massachusetts Supreme Judicial Court has been blasted with criticism from President Bush and other marriage equality opponents during the 15 months since it made its initial ruling in Goodridge. The criticism, that the court is run by “activist judges,” has been used to justify introduction of legislation in Congress to amend the U.S. constitution to ban marriage for same-sex couples and was a frequent issue in last year’s presidential campaign.
The state supreme court this week agreed to a briefing schedule and GLAD Legal Director Gary Buseck said oral arguments will probably take place after August.
“We think we have very strong arguments in challenging the application of the 1913 law against out-of-state same-sex couples,” said Buseck. “In some ways, they boil down to the notion that the constitutional rights granted in Goodridge cannot be denied to either residents or non-residents as state officials have the obligation to carry Goodridge into effect for everyone appropriately here in the Commonwealth. And the administration [of Republican Governor Mitt Romney] cannot use this old 1913 law to target same-sex couples because it serves their discriminatory purposes.”
Meanwhile, GLAD is preparing to go before the state supreme court in April in yet another marriage lawsuit, this one brought by the Catholic Action League of Massachusetts. The Action League argues that the court should have delayed enactment of its original marriage decision in the Goodridge case until the state legislature had an opportunity to vote on putting a constitutional ban before voters in November 2006.
For its part, the state legislature has postponed any action on the proposed constitutional ban until this fall. The legislature approved an amendment last year, but it must approve the same amendment again this year. If it does, that amendment then goes to voters in November 2006. The delay in addressing the constitutional ban, which most political observers say gives an advantage to supporters of marriage equality, was a decision of Senate President Robert Travaglini. Although he did not publicly explain his decision, reports indicate he wanted to give the House time to reorganize itself since the resignation of anti-gay House Speaker Tom Finneran. Meanwhile, the Boston Globe reported recently that its analysis of the new House and Senate make-up since last fall’s elections suggests that supporters of marriage equality appear to be gaining ground.
And as the battle for marriage trudges on in Massachusetts, the battle is in its early stages in neighboring Connecticut. There, GLAD has filed a lawsuit similar to Goodridge, but with seven Connecticut couples. The case is expected to take at least two years before a decision can be rendered by the Connecticut Supreme Court.
GLAD notes that there are same-sex marriage lawsuits working their way through courts in at least nine other states: California, Florida, Indiana, Maryland, New Jersey, New Mexico, New York, Oregon, and Washington state. Currently, only Massachusetts is issuing marriage licenses to same-sex couples which are not subject to legal challenge.