Mass. Non-Resident Marriage Ban Challenged

February 23, 2005

SPRINGFIELD, MA — The Supreme Judicial Court has agreed to hear a challenge to the Massachusetts law being used to prevent same-sex couples from outside the state from marrying.

Shortly after the court ruled the state could not bar gays and lesbians from marrying Gov. Mitt Romney declared that a 1913 law prevented town clerks from issuing licenses to couples who do not reside in Massachusetts.

The law says that the state cannot marry an out-of-state couple if that marriage would be void in the couple's home state. It had been created to prevent interracial marriages.

After Massachusetts began allowing interracial marriages at the turn of the last century states where it was still illegal complained that mixed race couples were going to Massachusetts to wed and then return home to fight the local bans.

The law had not been used since the Supreme Court ruled that banning interracial marriage was unconstitutional in 1967.

Clerks in several towns, including Provincetown refused to heed Romney's demand and issued licenses to out of state gay couples once same-sex marriage became legal in Massachusetts last May. They ended the practice after Attorney General Thomas Riley, under pressure from the governor, threatened to charge the clerks.

The challenge to the law was filed by more than a dozen town clerks from around the Bay State as well as non-resident couples who were denied marriage licenses after the Supreme Judicial Court legalized same-sex marriage.

Gay and Lesbian Advocates and Defenders, representing the couples, appealed to the Supreme Judicial Court to use its discretion to hear the case directly. Initial reviews usually are heard by the state appeals court.

The couples in the original case which legalized gay marriage in Massachusetts lost at the trial court level and won in a direct appeal to the SJC.

The SJC is expected to hear the case in May