Mass. Lawsuit Challenges Non-resident Marriage Ban

June 18, 2004

Two lawsuits challenging a Massachusetts ban on out-of-state gay marriages were announced Thursday in Boston.

At issue is a 1913 law that says marriage licenses cannot be issued to couples from other states if those marriages would be void in the states where the couples reside.

The law had been created when Massachusetts legalized interracial marriage and faced an outcry from other states which still banned the unions. Even then, the law was seldom enforced. After the US Supreme Court ruled in 1967 that preventing interracial marriage was illegal and struck down bans in those states which still prevented them the Massachusetts law collected dust.

Mass. Gov. Mitt Romney, a foe of same-sex marriage, dusted off the old statute and declared it was still valid and would apply to gay and lesbian couples from outside the state seeking to wed in the Commonwealth.

At a news conference Thursday morning, two suits were set in motion to have the old law struck down. Both will be filed Friday with the Supreme Judicial Court, the same body which declared preventing same-sex marriage to be illegal.

One suit involves eight couples who either were married in Massachusetts but whose marriages were declared illegal by the state, or were denied licenses altogether.

The couples reside in Providence, RI, New Hampshire, Maine, Connecticut and New York City.

Gay & Lesbian Advocates & Defenders, which won the landmark marriage ruling, contends the 1913 law is unconstitutional. GLAD said it's discriminatory to enforce it against gay couples when heterosexual couples from out-of-state were rarely, if ever, challenged over the past several decades.

We believe that Section 11 violates both the liberty and equality provisions of the Massachusetts Constitution, said Mary Bonauto, Civil Rights Director of GLAD. This was a law that clerks were instructed to ignore for decades, yet the governor pulled it off the shelves just to deny marriage to some gay and lesbian couples. Plainly stated, the Constitution trumps Section 11 under the Goodridge decision.

The second suit is by town clerks who had attempted to fight the ban but were ordered by the Attorney General to cease and desist on May 21.

Somerville is among the communities involved in the suit. Mayor Joseph Curtatone said using the law to stop out-of-state gay couples from marrying was outrageous.

We've been out on the lead of this issue from the beginning because we want to treat people equally. Curtatone said. We're confident we're on the right side of the law.

Provincetown has also joined the suit.

We have every expectation that this lawsuit will allow us to reopen our doors to marriage for everyone, said Dr. Cheryl L. Andrews, the lesbian Chair of the Provincetown Board of Selectmen.

If the legal challenge to the 1913 law is successful it could lead large numbers of gays and lesbians to come to Massachusetts to get married. Those couples could then demand legal recognition in their home states, setting off challenges to marriage laws across the country.