Out-of-state gay couples blocked from marrying in Mass.

Judge rules on ban pending final ruling on restrictive 1913 law

August 19, 2004|By NEW YORK TIMES NEWS SERVICE

Out-of-state gay couples are banned from marrying in Massachusetts pending a final ruling on the 1913 law that Gov. Mitt Romney is using to block same-sex marriages, a Superior Court judge ruled yesterday.

In a 22-page opinion, Judge Carol S. Ball ruled that the 1913 law, which denies out-of-state couples the right to marry in Massachusetts if the union would be deemed invalid in their home state, violates the "spirit" of last fall's Supreme Judicial Court decision legalizing gay marriage.

Nevertheless, Ball held that the law was not discriminatory because the state is applying it to all couples seeking marriage licenses regardless of whether they are gay or straight.

"The court finds troubling the timing of the resurrection of the implementation of [the law] immediately after the Supreme Judicial Court declared the prohibition against gay marriage unconstitutional," Ball wrote. "However, the plaintiffs have failed to show that same-sex couples are being subjected to a different set of rules than are opposite-sex couples."

Although Ball was only considering a request to temporarily allow the marriages until there is a final decision on whether the 1913 law is constitutional, she strongly suggested she will uphold the law itself. If she does, the same-sex couples who brought the lawsuit would appeal to the Supreme Judicial Court, which issued its landmark ruling legalizing gay marriage in November.

"We really expected this to go up the ladder. This is really round one," said Michele Granda, an attorney with Gay & Lesbian Advocates & Defenders and the lead lawyer for the plaintiffs.

Romney spokeswoman Shawn Feddeman declined to comment yesterday because there has been no final resolution to the case.

Because Massachusetts is the only state that allows same-sex marriage, the 1913 law effectively prohibits out-of-state gay couples from marrying here.

Eight same-sex couples, together with city clerks who objected to enforcing the law, filed separate lawsuits in June seeking to strike it down.

The plaintiffs argued that because the law hadn't been enforced for decades before the Supreme Judicial Court's ruling legalizing gay marriage, state officials were selectively using it to block same-sex couples from marrying. They also argued that the law was originally passed for racist reasons and was intended to block interracial couples from marrying. But Ball questioned yesterday that interpretation of the law's origin.

Lawyers for the state, however, argued that it mattered only that the law was currently being enforced across the board, and that the state had a legitimate interest in ensuring that marriages sanctioned here would be considered valid in other states.

In rejecting the clerks' request for a temporary injunction, Ball wrote yesterday that prior court decisions prohibit municipal officials from challenging the constitutionality of state laws.

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