A judge will decide whether a 1913 state law being used to prevent out-of-state gay couples from getting married in Massachusetts is discriminatory and should be struck down. An attorney for eight same-sex couples from other states asked superior court judge Carol Ball on Tuesday for an injunction blocking the state from enforcing the law, which prohibits marriages in Massachusetts that would be illegal in a couple's home state. Massachusetts is the only state where same-sex marriages are recognized.
The attorney, Michele Granda, argued that the 1913 statute violates both the U.S. Constitution and state law. "We're asking the court to tear down the fence of discrimination that's been erected around [the state's] borders," she said. Asst. Atty. Gen. Peter Sacks countered that the law protected other states' rights to define marriage as they see fit, a principle repeatedly cited by the Massachusetts supreme judicial court in its landmark November ruling legalizing gay marriage. Sacks said that ruling defines marriage as "two willing spouses and an approving state." Since no other state allows gay marriages, that standard is not met anywhere but in Massachusetts, he said. Ball gave the state until August 2 to file its response. She did not say when she would rule, but noted, "From what I've read so far, it appears the state is applying the law in a procedurally nondiscriminatory manner."
Republican governor Mitt Romney, a gay-marriage opponent, has invoked the 1913 law to bar gay couples from other states from getting married in Massachusetts. When same-sex marriages began May 17, some municipal clerks openly defied Romney and issued licenses to anyone who applied. But Massachusetts's attorney general, acting on Romney's instructions, ordered them to stop. Legal experts have said the law was passed to prevent interracial couples from getting married, but the attorney general has said there is no evidence lawmakers were motivated by race. At any rate, the law was ignored for decades before the high court cleared the way for the nation's first state-sanctioned same-sex weddings to begin this spring, Granda said. Sacks did not dispute that assertion. "Certainly enforcement has been increased because there's much more reason than there was before to expect violations," he said.
Of the eight couples who filed the lawsuit, two are from Connecticut, two from Rhode Island, and one each from New Hampshire, Vermont, Maine, and New York. Five of the couples were married in Massachusetts by clerks who ignored the 1913 law, while the three others were turned away when they tried to get marriage licenses.