Couples launch gay union lawsuit
The long-anticipated legal battle to extend gay marriage to couples who live beyond Massachusetts borders begins today, as two suits challenging a law barring those couples from marriage are filed in Suffolk Superior Court
Yesterday, in the same hotel ballroom where seven other plaintiff couples gathered to celebrate the November Supreme Judicial Court ruling granting them the right to marry, a new group of same-sex couples stood on the stage. All eight plaintiff couples in the new case are from out of state. Some were granted licenses and married in Massachusetts. Others were refused license applications because they are not residents of the state and would not swear an oath that they intend to reside here.
Governor Mitt Romney and Attorney General Thomas F. Reilly say a 1913 law forbids same-sex couples from other states from marrying here. The marriages of same-sex couples granted marriage licenses in defiance of their orders will not be recorded by the state, Romney has said.
Lawyers for the couples will argue that the law is unconstitutional, and that the matter has already been decided by the SJC case.
''Today we are challenging the constitutionality of the so-called 1913 law," said Mary Bonauto, civil rights project director at Gay & Lesbian Advocates & Defenders, ''which is being used discriminatorily by the executive branch of our government to fence out gay and lesbian couples who are non-residents."
A second suit, brought by clerks from a dozen cities and towns, will also be filed today. Their lawyers will argue that the 1913 law, which has not been enforced for decades, has been resuscitated specifically to exclude gay out-of-staters from marrying, and that the clerks are being forced to help the state discriminate against those couples.
Couples seeking marriage licenses must swear that they know of no impediments to their marrying, and clerks have not challenged them in the past. But in the weeks leading up to gay marriage, Romney's lawyers instructed city and town clerks to ask for proof of residency, or to have out-of-state applicants swear that they reside or intend to reside here.
''They've been asked to apply a set of rules and a statute that none of them, some of whom have been in marriage licensing offices for 30 years . . . have ever seen the like of before," said Kevin Batt, the Palmer & Dodge lawyer who, along with lawyers from the American Civil Liberties Union of Massachusetts, is representing them.
Lawyers argue that the 1913 law has its roots in racial discrimination, having been enacted to prevent interracial couples from traveling to Massachusetts to marry, evading their own states' bans on those marriages.
Reilly declined to comment yesterday, but in a letter to city and town clerks in May, his assistant argued that the law does not have its origins in racial discrimination, and that in any case, the state has an obligation to enforce the law as long as it is on the books. A spokeswoman for Romney also declined to comment.
Ray McNulty, a spokesman for the Massachusetts Family Institute, which has fought hard for a constitutional ban on gay marriage in Massachusetts, said ''we fully expect Attorney General Reilly will vigoriously defend" the 1913 statute. 