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Thursday, March 30, 2006

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

Updating this ILB entry from Oct. 5, 2005, on the validity of a 1913 Mass. law that, according to the Boston Globe, "forbade out-of-state couples from marrying if their union would not be legally recognized in their own state," the Mass. SJC ruled today in a split decision that the law was valid.

Here is a report from the Boston Globe today:

In an eagerly awaited landmark decision, the state's highest court ruled today that Governor Mitt Romney and Attorney General Thomas F. Reilly had the authority to invoke a 1913 state law that Massachusetts used to block out-of-state gay couples from marrying here when same-sex marriage became legal in 2004.

The Supreme Judicial Court upheld the 1913 law when it was used to block same sex-couples from Connecticut, Maine, New Hampshire, and Vermont, because gay marriage is prohibited in those states.

The court, however, did not rule on the claims of the couples from New York and Rhode Island because state laws there are unclear about whether same-sex marriage is barred. The court sent the case back to Superior Court Judge Carol Ball, who upheld the 1913 law that was appealed, to determine on an "expedited basis" when same-sex marriage is legal in those two states. * * *

The Supreme Judicial Court said the state did not overstep its bounds, though a lawyer for eight lesbian and gay couples from outside Massachusetts had argued in October that the officials had dusted off a 48-word law that had "sat on the shelf unused for decades" in a blatantly discriminatory and unconstitutional ploy.

The law, whose constitutionality was defended before the court by Reilly's attorneys, says Massachusetts cannot marry an out-of-state couple if their marriage would be void in their home state. Romney had said he did not want Massachusetts to become the "Las Vegas of same-sex marriage."

Here is the breakdown of the various opinions:

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

BY THE COURT.

The orders denying the plaintiffs' motions for preliminary injunction in these cases are affirmed. A majority of the Justices also agree that, as to the plaintiffs who reside in Connecticut, Maine, New Hampshire, and Vermont, a judgment for the defendants shall enter in the Superior Court because same-sex marriage is prohibited in those States. As to the New York and Rhode Island plaintiffs, their cases shall proceed in the Superior Court, on an expedited basis, for a determination whether same-sex marriage is prohibited in those States. So ordered.

SPINA, J. (concurring, with whom Cowin and Sosman, JJ., join).

MARSHALL, C.J. (concurring, with whom Cordy, J., joins, and Greaney, J., joins in part)

GREANEY, J. (concurring).

IRELAND, J. (dissenting).

The case is Andra COTE-WHITACRE & others vs. DEPARTMENT OF PUBLIC HEALTH & others. A difficult to read West version is available here.

[Updated 3/31/06] The NY Times reports today:

BOSTON, March 30 — Massachusetts's highest court, which legalized same-sex marriage here two and a half years ago, ruled Thursday that gay couples who live in states where such marriages are prohibited cannot marry in Massachusetts.

But the ruling left open the possibility that gay couples from states like New York and Rhode Island that do not explicitly ban same-sex marriage might be able to marry in Massachusetts. * * *

Michele E. Granda, a lawyer for Gay and Lesbian Advocates and Defenders, which represented the plaintiffs, said that while her side had the option of asking the United States Supreme Court to hear an appeal, it was much more likely that her group would focus on the New York and Rhode Island cases, and would press the Massachusetts legislature to repeal the 1913 law.

A bill to repeal the law passed the State Senate overwhelmingly in 2004 but was not taken up in the House of Representatives, which at the time was led by a speaker who opposed same-sex marriage. It was recently reintroduced.

"This is a ridiculous, confusing and badly formed law," Ms. Granda said. "We live in a mobile society, and where someone lives today may have no meaning for them when they go on vacation next month or relocate a year from now."

From today's Washington Post coverage:
Gay rights activists expressed relief that the legal bedrock of the court's original decision remained intact -- namely, that Massachusetts gay couples have an unfettered right to marriage. And they pointed to national polls that report a growing number of Americans -- though not quite a majority -- support same-sex marriage. Those who say that they are strongly opposed have dropped from 42 percent to 28 percent in the past two years, according to the Pew Research Center.

The Washington state Supreme Court is expected to rule soon on the constitutionality of a state law prohibiting same-sex marriage. Two lower courts have struck down the law. Unlike Massachusetts, Washington has no law prohibiting nonresidents from getting married there if their own state prohibits it. * * *

The ruling left behind several ambiguities, not least what happens to the marriages of those from states such as New York and Rhode Island. Both states have no explicit ban on same-sex marriage, and New York Attorney General Eliot Spitzer has issued an opinion, now being challenged in state court, that New York should honor same-sex marriages performed elsewhere.

Nor is it entirely clear what becomes of the marriages of those who managed to slip under the legal deadline in those first days after the 2003 same-sex marriage ruling.

Posted by Marcia Oddi on March 30, 2006 12:32 PM
Posted to General Law Related