April 7, 2006

Couples can't go to Massachusetts to marry

Court upholds old law against non-resident vows if home state prohibits them

by Eric Resnick

Boston--The Massachusetts top court has upheld the use of an old anti-miscegenation law to block most out-of-state same-sex couples from marrying there.

The state�s Supreme Judicial Court ruled March 30 that the Uniform Marriage Evasion Act does not violate the state constitution.

The law prohibits out-of state couples from marrying in Massachusetts if their home states would not allow them to marry. It was passed in 1913, when many other states had laws against mixed-race marriages.

Those laws were struck down by the U.S. Supreme Court in 1967. It is not known if the Massachusetts law was ever used, until the same Supreme Judicial Court ruled in favor of same-sex marriages in 2004.

Then, Gov. Mitt Romney, a Republican presidential hopeful and gay marriage opponent, began enforcing the forgotten measure.

Romney said he did not want his state to become �the Las Vegas of same-sex marriage.�

The top court�s 6-1 decision settles two lawsuits on the matter. The first, Cote-Whitacre v. Department of Public Health, was filed by eight couples from Vermont, Connecticut, New Hampshire, Maine, Rhode Island and New York who were denied marriage licenses in Massachusetts.

The couples claimed that the law violates the state and U.S. constitutions. They were represented by Gay and Lesbian Advocates and Defenders, the Boston group that won the right to marry.

The second, Johnstone v. Reilly, was filed by 13 city and town clerks claiming that they were being forced to selectively enforce the law, violating the high court�s Goodridge v. Department of Public Health ruling allowing same-sex marriages, and the constitution it is based on.

The clerks argued that Goodridge and other rulings require that the couples be treated equally to opposite-sex couples, and equal to Massachusetts residents.

The court disagreed with both claims in three concurring opinions. The primary one was written by Justice Francis Spina, with justices Judith Cowin and Martha Sosman.

�It is not the province of this court to dictate to other states how to construe their own specific statutes and public policy when confronted with the issue of whether to recognize a same-sex marriage performed in Massachusetts,� Spina wrote.

�The laws of this commonwealth have not endowed nonresidents with an unfettered right to marry,� he continued. �To the contrary, the rights of nonresidents to marry in Massachusetts have been specifically restricted through operation of [the Marriage Evasion Act], by which the legislature has determined that, before a nonresident can be issued a marriage license, the laws of the applicants� home state, including marital impediments, must be considered and applied.�

Spina went on to differentiate between two groups of nonresidents: those who can marry in Massachusetts, and those who cannot because of laws in their home state.

Opposite-sex couples have no restrictive laws other than minimum ages that vary from state to state.

Chief Justice Margaret Marshall, the author of Goodridge, wrote an opinion that agrees with the end result of Spina�s but criticized its legal analysis. She was joined by justices Robert Cordy and John Greaney, in part.

�The record leaves no question that the commonwealth has applied [the Marriage Evasion Act] in a manner purposely intended to deny any nonresident same-sex couple the opportunity to marry in Massachusetts,� wrote Marshall.

But Marshall left the door open for couples whose home states do not expressly prohibit same-sex marriage.

�Nonresident same-sex couples who wish to marry in Massachusetts, and who reside in states where they are not expressly prohibited from marrying . . . [should] be permitted, at the very least, to present evidence to rebut the commonwealth�s claim that their home state would prohibit their marriage,� she wrote.

Marshall�s opinion sent the cases of the couples from New York and Rhode Island back to a lower court to decide if Massachusetts can issue marriage licenses.

Those two states, along with New Jersey, New Mexico and the District of Columbia, have no laws expressly prohibiting same-sex marriage, although they do not allow it.

All other states, including those that allow civil unions, have laws or constitutional amendments against same-sex marriage.

Greaney also wrote a second concurring opinion that Goodridge redefined marriage, and taking issue with the way Spina analyzed the law, but not the conclusion.

Justice Roderick Ireland dissented, saying that the majority violated their own precedent that �liberty and equality provisions of the Constitution of Massachusetts prohibit the use of gender distinctions with respect to marriage.�

Ireland said it was those principles that led the court to the Goodridge decision in the first place.

There is presently a bill in the Massachusetts legislature to repeal the 1913 law. There is also a constitutional amendment to undo Goodridge and prohibit same-sex marriages, which lawmakers will consider on May 10.

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