By Ann Rostow Contributing Writer

Court ruling represents technical victory; marriages
will not be sanctioned in couples’ home state

In a technical victory for same-sex couples, a Massachusetts lower court judge has given the green light to couples from Rhode Island to marry in Massachusetts.

Wendy Becker and Mary Norton, of Providence, R.I., argued that a 1913 law that forbids out-of-state residents from marrying in Massachusetts did not apply to them. The law prohibits couples from marrying in Massachusetts if the marriage would not be permitted in their home state, but the couple argued Rhode Island does not specifically ban gay marriage.
Suffolk Superior Court Judge Thomas Connolly agreed.

“No evidence was introduced before this court of a constitutional amendment, statute or controlling appellate decision from Rhode Island that explicitly deems void or otherwise expressly forbids same-sex marriage,” he ruled.

The Sept. 29 decision does not apply to couples from any other state. Nor will it have any concrete impact in Rhode Island itself, where Attorney General Patrick C. Lynch reminded the press that his state will not recog-nize a same-sex marriage, regardless of its status in the state where it was contracted.

Massachusetts Attorney General Tom Reilly said he would not appeal Connolly’s ruling, despite a request from Gov. Mitt Romney that he reconsider. Reilly said the issue was for Rhode Island to decide.

Ironically, Justice Connolly was the same judge who ruled against same-sex couples in the early stages of Goodridge v. Department of Public Health. Connolly’s ruling was appealed, and eventually the state’s highest court reversed his decision, legalizing same-sex marriage throughout the Bay State effective May 2004.

Although Massachusetts did not appear at that time to enforce any residency requirements, conservatives discovered an overlooked statute that barred out of state couples from marrying in the Commonwealth if their marriages would be considered “void” in their home states. Passed in 1913 in order to discourage interracial marriages, the law had never been used. Nor had any Massachusetts clerk ever asked for proof of residency or demanded that sort of documentation from out of state couples.

That all changed when same-sex couples began signing up for nuptials two years ago. Suddenly, would-be newlyweds from beyond the borders were sent home, knots untied, based on the 1913 law. Given the surprise reappearance of the archaic regulation, same-sex couples from several nearby states sued Massachusetts, arguing that the statute was being used to target gay men and lesbians in violation of the constitution, and in conflict with the Massachusetts Supreme Judicial Court’s marriage ruling.
This litigation went back up to the Supreme Judicial Court, where the seven justices issued a splintered decision last April.

Only one justice agreed that the law was unconstitutionally applied. The other six ruled that the state had the right to enforce the restriction. This majority, in turn, then split into two groups over the question of how to decide whether or not same-sex marriage is “void” in a given state.

A common sense look at the other 49 states suggests that the answer is obvious; same-sex marriage is not legal anywhere in the United States outside of Massachusetts. But just because same-sex couples may not marry in other states, does that mean that these states would look upon a legal marriage from outside their territory as “void?”

One group of justices essentially said yes. If a marriage cannot be contracted in a given state, they reasoned, the marriage cannot be contracted in Massachusetts under the intent of the 1913 law.

But the other justices outlined a specific test, ruling that a gay marriage is only considered void in a state with either a constitutional or statutory ban on same-sex marriage, or in a state where controlling legal authority has ruled against same-sex marriage.

The second definition took care of almost all of the rest of the country, leaving a question mark hovering over a handful of states including Rhode Island, New York, New Mexico and New Jersey. Since there were no couples from New Jersey or New Mexico involved in the lawsuit, the high court majority ordered the plaintiffs from Rhode Island and New York to bring their arguments before a lower court. The other plaintiffs from Connecticut, Maine, New Hampshire and Vermont were sent packing, based on their states’ clear stands against same-sex marriage.

Since the high court of New York was poised to rule on the status of gay marriage in the Empire State, Justice Connolly and the New York plaintiffs agreed that the New York Court of Appeals decision would settle the issue as far as New Yorkers were concerned. Indeed, the high court did so, ruling in July that the state restrictions on marriage were constitutional and that gay couples had no inherent right to wed.

As far as Connolly’s court was concerned, that left Rhode Island, where no law or amendment dictates marriage policy, and where no court of last resort has offered an opinion on the subject.

Using the narrower standard of analysis proposed by the second group of justices, Connolly determined that a same-sex marriage could not be considered automatically “void” in Rhode Island, hence Massachusetts law would not block a Rhode Island couple from taking their vows in Boston.
In some ways, Rhode Island couples are not much better off than same-sex couples anywhere else in the country. Any two people could theoretically go “reside” in Massachusetts for a few months, get married, and return to their home states, where like couples from Rhode Island their marriages would not be recognized.

As same-sex couples with legitimate Canadian marriages have seen, American states remain hostile to same-sex marriages, regardless of the lawful nature of their contracts.

But considering the ambiguity that led to Connolly’s decision, there’s also a case to be made that Rhode Island courts would respect a Massachusetts marriage without having to sanction one in their own jurisdiction. American case law is filled with instances where states have recognized marriages that could not have been contracted at home, including interracial marriages, underage marriages, cousin-to-cousin marriages and so forth.

Obviously, such a test would have to wait until a real dispute arises between members of a Massachusetts marriage who live in Rhode Island, or elsewhere for that matter. To recognize or not to recognize is a meaningless policy statement outside of an actual conflict that requires court intervention or state action.

However things evolve, the decision is sure to provoke a political reaction in Rhode Island, where marriage policy has been exposed as ambiguous at best and where state leaders will be pressured to establish a formal stance, one way or another.

A bill to legalize same-sex marriage was introduced in the last legislative session, although it did not advance. And certainly, conservatives in the state will be calling loudly for a marriage ban.

As for couples in New Mexico, like the Rhode Island plaintiffs, they would have to bring a case in Massachusetts in order to press their claim to marry in the state.

New Jersey residents, in turn, need only wait a week or a month before their high court will rule on the constitutional right to marry in the Garden State. New Jersey’s freedom-to-marry case was argued before the New Jersey Supreme Court last February, and a final decision is around the corner.
If the justices rule in favor of same-sex marriage, New Jersey’s gay and lesbian couples can obviously marry in Massachusetts if they so wish. And since everyone else will be able to marry in New Jersey as well, the fascinating details of Massachusetts marriage law will be, well, less fascinating.

This article appeared in the Dallas Voice print edition, October 6, 2006. как продвигать юридические услуги