A few days after
same-sex couples began marrying last year in
Massachusetts, Les Schoof and Ed Butler drove down from
their New Hampshire inn and lined up at the marriage
license window at Somerville City Hall.
When they reached the head of the line, the men
were asked whether they planned to live in
Massachusetts. No, they said, they were happy in New
Hampshire. The clerk then politely but firmly turned them down.
On Thursday the Massachusetts supreme judicial
court will hear arguments on the denial of marriage
licenses to eight out-of-state gay couples, including
Schoof and Butler. At issue is a 1913 law that forbids
out-of-state couples from marrying in Massachusetts if their
union would not be legally recognized in their own
state. Other states are closely watching the case,
because if the court strikes down the law, same-sex
couples nationwide could go to Massachusetts to wed and
demand marriage rights in their home states.
When same-sex marriage became legal in May 2004,
Gov. Mitt Romney ordered city and town clerks to
enforce the 1913 law and wrote to every other governor
in the nation that out-of-state same-sex couples would not
be allowed to marry in Massachusetts. Somerville and a
handful of other communities initially defied the ban
but eventually capitulated.
Gay and Lesbian Advocates and Defenders sued the
state on behalf of the eight couples to strike down
the law. GLAD had brought the lawsuit resulting in the
high court ruling in November 2003 that same-sex couples
had a right under the state constitution to marry. "Just as
the court said that same-sex couples have a right to a
marriage license, then it's really wrong to think that
officials in the commonwealth could deny that right,"
said Gary Buseck, legal director at GLAD.
Romney spokesman Eric Fehrnstrom said, however,
that the law is clear: "If you can't be legally
married in your home state, then you can't evade the
law by coming to Massachusetts to get married."
A superior court judge upheld the law last year,
saying that while she was troubled by the state's
decision to suddenly begin enforcing it, the law was
not discriminatory because the state has reason to ensure
that marriages in Massachusetts are valid in other states.
The plaintiffs asked the state appeals court to
hear the case, but the supreme judicial court decided
earlier this year to reach down and take the case.
Schoof, 54, said he's hopeful that one day he
and his partner of almost 30 years will be able to
legally marry in Massachusetts, even though they live
in New Hampshire. "There is a sense from the people involved
with the case that we're doing the right thing in litigating
this, and eventually—hopefully, sooner rather
than later—this will come to pass," he said.