Mass. Court Rejects Non-resident Marriage Ban Challenge

August 18, 2004

A Massachusetts trial judge Wednesday declined immediate relief to eight out-of-state gay and lesbian couples who filed the lawsuit challenging the constitutionality of a 1913 law which prevents marriage licenses from being issued to couples from outside the state if their marriages would be illegal where they live.

While this is clearly a disappointment for the families and many others, we are not discouraged, said Michele Granda, an attorney with Gay & Lesbian Advocates & Defenders which represents the eight couples.

In fact, the decision provides us with validation of our core argument: that the law violates the spirit of the Goodridge decision, and that Massachusetts should not be in the business of discriminating against gay and lesbian families, Granda said.

GLAD said it would appeal the decision.

Same-sex marriage became legal in Massachusetts this spring (detailed coverage) but Gov. Mitt Romney has used the law to prevent all but Massachusetts residents from marrying in the state.

The case, Cote-Whitacre, et al. v. Department of Public Health, was originally filed on June 18, on behalf of the eight gay and lesbian couples from across New England and New York, who stated that they were nonresidents when they applied for marriage licenses and now face claims that their marriages are void.

Three of the eight couples were denied licenses altogether. Together with a suit by 13 city and town clerks challenging the same law, the couples and the clerks sought a preliminary injunction barring the Commonwealth from enforcing the 1913 Law pending a final decision in the lawsuit.

Today's decision by Suffolk Superior Court Judge Carol S. Ball denies the couples' and the clerks' request for immediate relief but makes no final determination on the merits of the pending lawsuits.

The trial court's denial of preliminary relief does not prevent the couples from receiving a favorable final decision in their lawsuit. As Granda explained, This case is still alive. The trial court will hear further argument on the merits and the case will be decided on appeal. We're confident of our ultimate success. This is a very, very hard day for us, said Bobbi-Cote Whitacre of Essex Junction, Vermont, one of the named plaintiffs in the case who has been with her partner Sandi-Cote-Whitacre for over 36 years. We know that some day this unfair disrespect of our family will end. We now know that people out there understand and appreciate our concerns as a lesbian couple about aging, illness and retirement. Michael Thorne, who has been with his partner, Jim, for 21 years and adopted their two-year old son in Massachusetts, added Jim and I have lived in Massachusetts for a combined total of sixty-six years. They now live in Cape Elizabeth, Maine. We have trouble understanding why Massachusetts would let us form a family through adoption but would refuse to let us strengthen our family through marriage.

Resources

• Plaintiffs' Complaint (pdf)
• Plaintiffs' Motion for Preliminary Injunction (pdf)
• Plaintiffs' Memorandum in Support of Preliminary Injunction
• Attorney General's Opposition
• Plaintiff's Reply
• Attorney General's Sur-Reply
• Suffolk Superior Court Decision (pdf)