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Out of state couples out of luck in Massachusetts

By Lisa Keen

BOSTON – Whether it reflects a legal nuance or a political retreat, the supreme court of Massachusetts last week struck a major blow against same-sex marriages.
In a 6 to 1 vote, the Massachusetts Supreme Judicial Court decided March 30 that gay couples from states that explicitly bar same-sex marriage cannot go to Massachusetts for a marriage license.
The ruling effectively prohibits gay couples in at least 42 states from obtaining marriage licenses in Massachusetts. It also provides considerable political leverage for opponents of gay marriage to seek explicit bans from legislatures in states that do not have explicit bans.
The latest case upon which the court ruled involved plaintiff couples in six New England states, challenging Massachusetts Governor Mitt Romney's use of an obscure 1913 state statute to block gay couples in other states from traveling to Massachusetts to obtain marriage licenses. A group of Massachusetts town and city clerks also challenged the law. The two lawsuits were consolidated as Cote-Whitacre v. Department of Public Health.
The law, approved at a time when many states prohibited interracial marriage, says that no couple could obtain a marriage license in Massachusetts if their marriage would be "void" in their home state. It also says that a town or city clerk must "satisfy himself" that a couple from another state seeking a license in Massachusetts "is not prohibited" from marrying in the state where they reside.
Gay & Lesbian Advocates & Defenders, the group which won gay marriage rights in the November 2003 Goodridge v. Department of Public Health decision, challenged Romney's sudden enforcement of the otherwise unused law.
In an unusually brief 88-word decision, six of the state supreme court's seven justices agreed that four of the six New England states – Connecticut, Maine, New Hampshire, and Vermont – prohibit same-sex marriage and that couples in those states were prevented by the 1913 law from obtaining marriage licenses in Massachusetts. But, in the one bright spot for gay legal activists, the majority agreed that the plaintiff couples from New York and Rhode Island might be eligible for licensing. It sent their case back to the lower court to determine whether those states also ban same-sex marriage.
But in three unusually long and complicated concurrences, the six justices disagreed on how the lower court should determine whether other states prohibit same-sex marriage.
Three justices, led by Francis Spina, said the 1913 law reflected the state legislature's "strong interest in defining the boundaries of marriages" in Massachusetts and "its desire to respect the laws of other jurisdictions." Its application against same-sex couples was not discriminatory, according to the three, because, "When any nonresident couple, whether same-sex or opposite-sex, fails to satisfy the mandates of [the law], a marriage license simply is not issued." And, finally, they said that a state should be considered to "prohibit" same-sex marriage if it does not – by law or court ruling – expressly permit or recognize it. Currently, only Massachusetts expressly permits same-sex marriage.
Four justices, led by Chief Justice Margaret Marshall, disagreed with Spina's conclusion that a state that does not explicitly permit or recognize same-sex marriages should be considered to prohibit them.
"This interpretation of the statute," wrote Marshall, "…does serious damage to the principle of limited government."
"Taken to its logical end," she said, "it would compel us, for instance, to conclude that, in any State where the marriage between a woman and her former brother-in-law … is not affirmatively allowed by statutory or decisional law, it is 'prohibited' in the home state and therefore may not be contracted in Massachusetts. This is manifestly not the case."
"It is also clear that neither Justice Spina nor the Attorney General [Thomas Reilly] is willing to apply this reading of [the 1913 law] beyond the question of same-sex marriage, a circumstance I find troubling."
Although Spina's concurring opinion is listed first after the court's decision, it is not clear whose interpretation of "prohibited" should be used by the lower court to decide whether another state would allow recognition of same-sex marriages.
GLAD attorney Michele Granda, who argued the case before the court, said she believes Marshall's more favorable interpretation should be the guide because three justices agreed with her interpretation of "prohibited" while only two agreed with Spina's and Ireland also disagrees with Spina's.
Granda said GLAD will now go to a state trial court to argue that New York and Rhode Island do not prohibit same-sex marriage. Neither state has passed a constitutional amendment or a statute prohibiting recognition of same-sex marriage. The New York state supreme court is set to hear arguments May 31 in a lawsuit challenging denial of marriage licenses to same-sex couples.
Granda said GLAD is "still parsing" the decision of the Massachusetts supreme court "to determine which other states" might be considered as not prohibiting same-sex marriage.
Beyond New York and Rhode Island, there are only five other states that do not have constitutional bans and/or statutes prohibiting same-sex marriage: Maryland, New Jersey, New Mexico, Wisconsin, and Wyoming. Three of those states – Maryland, Wisconsin, and Wyoming – have definitions of marriage as being between "one man and one woman," language which a court might interpret as implicitly banning same-sex marriage. Voters in Wisconsin will vote in November on whether to approve a constitutional ban.
And Granda said GLAD is still analyzing what the decision means for out-of-state couples who have already obtained marriage licenses in Massachusetts. While Governor Romney threatened severe penalties for town and city clerks who issued licenses to out-of-state couples, some clerks did issue such licenses. Spina's concurrence said that marriages "erroneously contracted, either intentionally or unintentionally … are considered 'null and void' in Massachusetts and everywhere else" but included a footnote saying, "it is the province of the applicants' home State to decide whether and how to recognize the erroneously contracted marriage once the couple returns to their home State."
Only one justice – Roderick Ireland, an appointee of former Republican Governor William Weld and the bench's first African-American – dissented from the majority's result. Ireland said the state's "resurrection and selective enforcement of a moribund statute, dormant for almost one hundred years, not only violates the 'spirit' of Goodridge… but also offends notions of equal protection."
"It is, at its core, fundamentally unfair," wrote Ireland. Citing the U.S. Supreme Court's 1967 ruling in Loving v. Virginia, which struck down laws prohibiting interracial marriages, Ireland said he believes the prohibition of same-sex marriage reflects discrimination based on the gender of one's intended spouse.
Despite the loneliness of Ireland's dissent, GLAD's Granda said "there really is a silver lining" for gay couples in last week's decision.
"The door is still open for us to remove [barriers to marriage] for some couples, and that's a step forward," said Granda. "We move forward on an incremental basis and that still allows more couples to get married and more communities and neighbors and friends to see what it means. It's a good thing for everyone."
As for the likelihood that the decision might be used to promote explicitly anti-gay marriage legislation in the remaining seven states, Granda said those efforts exist with or without the 1913 law decision.
"With or without this decision, opponents are arguing for intensification of discrimination at the state and national level, so I see no reason why that would change," said Granda. "But more than 7,000 couples have been able to marry and voter support is growing in other states."
A national poll released March 22 showed a dramatic drop in opposition to same-sex marriages – from 63 percent opposing in February 2004 to only 51 percent opposing in March 2006.

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