BOSTON (ABP) — The same court that created a national firestorm by legalizing gay marriage in 2003 delivered gay-rights activists a setback March 30 in a related case.
The Massachusetts Supreme Judicial Court ruled 7-1 that an obscure 1913 law could be used to prohibit non-residents from marrying in Massachusetts, the only jurisdiction in the United States that expressly allows same-sex marriage.
The law says that out-of-state couples may not marry in Massachusetts if the marriage would violate the law of their home states. Most states explicitly ban same-sex marriage.
“The laws of this commonwealth have not endowed nonresidents with an unfettered right to marry,” Justice Francis Spina wrote for the majority. “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.”
Soon after Massachusetts started marrying gay couples, opponent Gov. Mitt Romney (R) cited the 1913 law — originally intended to block out-of-state interracial marriages, but long since ignored — when he ordered state officials to stop marrying out-of-state gay couples.
Eight same-sex couples from neighboring states who had married in Massachusetts then sued the commonwealth.
Massachusetts Chief Justice Margaret Marshall, the author of the original 2003 decision that permitted gay couples to marry on the same basis as heterosexual couples, wrote a separate concurring opinion in the latest case that questioned Romney's use of the 1913 law but agreed with the court's decision.
Marshall said Romney used the obscure statute “in a manner purposely intended to deny to any nonresident same-sex couple the opportunity to marry in Massachusetts.” Despite Romney's motives, she wrote, the law is valid nonetheless. “The couples voluntarily assumed the risk that the commonwealth would take steps to deny them (or refuse to record) a certificate to marry, which is precisely what happened,” she said.
The case was Cote-Whitacre v. Massachusetts Department of Public Health.