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Mass. can bar marriage for nonresident gay couples

SJC rules that home state's laws prevail

Michele E. Granda, lawyer for Gay & Lesbian Advocates & Defenders, addressed Boston media yesterday as Tanya Wexler of New York held daughter Ella with her partner, Amy Zimmerman.
Michele E. Granda, lawyer for Gay & Lesbian Advocates & Defenders, addressed Boston media yesterday as Tanya Wexler of New York held daughter Ella with her partner, Amy Zimmerman. (Globe Staff Photo / Suzanne Kreiter)

The state's highest court ruled yesterday that Governor Mitt Romney and Attorney General Thomas F. Reilly had the authority to use a 1913 state law to block out-of-state gay couples from marrying here after same-sex marriage became legal in 2004.

The Supreme Judicial Court said the obscure law, which prohibits Massachusetts from marrying an out-of-state couple if the marriage would not be legal in their home state, passed constitutional muster and could be applied to five same-sex couples from Connecticut, Maine, New Hampshire, and Vermont, because gay marriage is expressly prohibited in those states.

The court, however, said state officials had applied the law too broadly when they refused to allow the marriage of three couples from New York and Rhode Island, because same-sex marriage is not explicitly prohibited in those states. The high court sent the case of those three couples back to Superior Court Judge Carol Ball, who upheld the 1913 law last year, to quickly determine whether same-sex marriage is prohibited in those states. No time frame was set.

''The laws of this Commonwealth have not endowed nonresidents with an unfettered right to marry," Justice Francis X. Spina wrote in his opinion. ''Only nonresident couples who come to Massachusetts to marry and intend to reside in this Commonwealth thereafter can be issued a marriage license without consideration of any impediments to marriage that existed in their former home states."

Yesterday's ruling was issued in an unusual one-paragraph summary approved by an unnamed majority of the seven-member court. Most of the rest of the 38-page decision consisted of three concurring opinions by six justices and a stinging dissent by Justice Roderick L. Ireland.

Romney, an outspoken opponent of same-sex marriage who is considering a run for president in 2008, applauded the ruling as ''an important victory for those who want to preserve traditional marriage." The SJC, he said, was wrong to legalize same-sex marriage in Massachusetts and ''spreading it beyond our borders would only be compounding Massachusetts' error."

''We don't want Massachusetts to become the Las Vegas of same-sex marriage," he said during an impromptu press conference in Dorchester, where he was signing antigang legislation.

Reilly -- whose lawyers defended the statute as constitutional, even though he said he personally supports same-sex marriage -- also praised the decision.

''I think what the court did today is, really, to recognize that it's up to each state to decide what their laws will be," said Reilly, who is seeking the Democratic nomination for governor.

Andrew Koppelman, a Northwestern University School of Law professor who signed a friend-of-the court brief siding with the couples, said that he was not surprised by the decision and that it makes sense.

He predicted that Ball would rule that same-sex marriage is prohibited in New York, in part because New York appeals courts have declared same-sex marriages void. He said Ball probably would block the Rhode Island couples, as well.

''The practical upshot of this decision is that couples from other states who want to enter into same-sex marriage are going to have to bypass Boston and continue north to Ontario, and Canada doesn't care where you're from," said Koppelman. Canada has legalized same-sex marriage.

But the ruling disappointed gay-rights activists who had argued to the court in October that state officials had ''dusted off" a law that had been shelved for decades, calling it a blatantly discriminatory and unconstitutional ploy to limit the impact of Goodridge v. Department of Public Health, the SJC's historic 2003 ruling legalizing same-sex marriage.

''This is a bad law and a confusing law," Michele E. Granda, the lawyer for Gay & Lesbian Advocates & Defenders, said after a press conference with four of the eight out-of-state couples whom the organization represented in the challenge. The statute makes Massachusetts an accomplice to discrimination, she said, urging the Legislature to repeal it.

She expressed guarded optimism that gay-rights activists can persuade Ball that same-sex couples from Rhode Island and New York should be able to marry in Massachusetts.

The attorneys general of Rhode Island and New York have both said their states should recognize marriages of same-sex couples that take place out of state. ''New York and Rhode Island both have a long history of extending rights to same-sex couples and not taking them away," Granda said.

Among those hoping that Granda is right were Amy Zimmerman and Tanya Wexler. The couple from New York City wed in Somerville in May 2004, after 12 years together, believing that nothing in New York law stood in their way, Zimmerman said.

''It's sort of like being in a state of limbo," said Zimmerman, who attended the news conference with Wexler and three of their four young children. ''But it also seems like being on a pretty long journey, and I'm hopeful that ultimately the people in America and New York and Massachusetts are fair-minded and that they will do the right thing."

Regardless of how Ball rules, the decision is likely to be appealed to the SJC again.

Yesterday's ruling stemmed from a decision by Romney in May 2004, when gay couples began marrying, to ask Reilly to stop the issuance of marriage licenses to couples from other states if they had no intention of living in Massachusetts.

Romney invoked a statute that says, in part, ''No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction." The law prevents couples from evading a wide range of marriage prohibitions in their home states, including bans on marriages involving people who are underage or too closely related.

The statute's use triggered a lawsuit by eight couples and by 13 city and town clerks who said they had never applied the law before and were being forced to discriminate against same-sex couples.

Ball ruled that while use of the statute violated the spirit of the decision legalizing gay marriage, it was not discriminatory. Yesterday, a majority of the SJC upheld the statute in three separate opinions that reflected the different reasoning that justices in the majority used to reach their conclusion.

Chief Justice Magaret H. Marshall, who has been pilloried by conservatives for the decision legalizing gay marriage, said state officials had applied the law ''in a manner purposely intended to deny to any nonresident same-sex couple the opportunity to marry in Massachusetts." That was too broad, she said, because same-sex marriage is not expressly banned in Rhode Island and New York.

In a scathing dissent, Ireland agreed with lawyers from GLAD and the American Civil Liberties Union of Massachusetts, which represented the municipal clerks, writing that the state had resurrected a ''moribund statute" to subvert Goodridge.

''This law has not been enforced for almost one hundred years, and certainly never with the vitriol currently on display," he wrote. ''To use a law that has not been used for over one hundred years to deny same-sex couples access to marriage contravenes the public policy of this state to protect all persons, including homosexuals."

Invoking language from Goodridge, he added, ''We have seen this before, and we declared 'history must yield to a more fully developed understanding of the invidious quality of the discrimination' before us," he wrote.

Scott Helman and Charles A. Radin of the Globe staff contributed to this report. Jonathan Saltzman can be reached at jsaltzman@globe.com.

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