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Thursday, October 06, 2005

Law - Mass. SJC hears challenges on same-sex marriage ban for nonresidents [Updated]

The story today, in the Boston Globe, reports that the right of out-of-state residents to marry in Massachusetts will be:

the subject of arguments today in the Supreme Judicial Court, which legalized gay marriage in Massachusetts in a landmark November 2003 ruling.

At issue is a 1913 law that forbade out-of-state couples from marrying if their union would not be legally recognized in their own state.

As same-sex marriage became legal on May 17, 2004, Governor Mitt Romney ordered city and town clerks to enforce the law and wrote to other governors to warn that out-of-state couples would not be allowed to marry in Massachusetts.

The case is SJC-09436 - In re: Sandra Cote-Whitaker & others v. Department of Public Health & others and Clerk of the Town of Provincetown & others v. Attorney General & others. According to the Court's amicus anouncement of 3/28/05:
These consolidated cases present the issues, among others, whether the Commonwealth's application of G. L. c. 207, ยงยง 11-12, to deny marriage licenses to non-resident same-sex couples violates Massachusetts law and the Privileges and Immunities Clause of the United States Constitution; whether the enforcement scheme is constitutional.
Here is the case docket. Here is the law, c. 207, section 11 and section 12.

[More] Here, thanks to How Appealing, is a new AP story written after the oral arguments. Some quotes:

BOSTON (AP) -- In a case closely watched across the country, the court that made Massachusetts the first state to legalize gay marriage was asked Thursday to decide whether same-sex couples from out-of-state can tie the knot here, too.

At issue before Massachusetts' highest court was a 1913 state law that says that out-of-state couples cannot get married in Massachusetts if their home states do not recognize such unions. Republican Gov. Mitt Romney has invoked the law to prevent out-of-state gay couples from getting married here. * * *

Michele Granda, a gay-rights lawyer for the couples, argued before the high court Thursday that the 1913 law "sat on the shelf" unused for decades until it was "dusted off" by the governor.

Granda said the high court, in its historic ruling legalizing gay marriage, found that under the Massachusetts Constitution, same-sex couples had the same right to marry as heterosexual couples.

"Nothing in (that ruling) says that our officials can discriminate simply because officials in other states discriminate," Granda told the six-judge panel. * * *

After same-sex marriage became legal in May 2004, Romney ordered city and town clerks to enforce the 1913 law and wrote to every other governor in the nation that out-of-state gay couples would not be allowed to marry in Massachusetts. A few communities initially defied the governor but eventually complied.

[Updated 10/7/05] Today's Boston Globe provides an account of yesterday's oral arguments and the possible implications. Some quotes:
In a case that could intensify the fierce debate about same-sex marriage in the United States, the Supreme Judicial Court heard arguments yesterday in a challenge to a 1913 state law that the Commonwealth has used to block out-of-state gay couples from marrying here.

A lawyer for eight lesbian and gay couples from outside Massachusetts told the state's highest court that the Romney administration dusted off a law that had ''sat on the shelf unused for decades" in a blatantly discriminatory and unconstitutional ploy.

"The Commonwealth turned on a dime" only days after gay marriage became legal on May 17, 2004, when it began invoking an obscure 48-word law that says Massachusetts cannot marry an out-of-state couple if their marriage would be void in their home state, said Michele E. Granda, a lawyer for Gay & Lesbian Advocates & Defenders.

Posted by Marcia Oddi on October 6, 2005 11:33 AM
Posted to General Law Related