Ruling backs law restricting marriage

Out-of-state gay couples are banned from marrying in Massachusetts pending a final ruling on the 1913 law that Governor 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 now 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 last November.

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

Romney spokeswoman Shawn Feddeman declined to comment yesterday, because there hasn't been a final resolution to the case.

Since 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 last 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 using it selectively to block same-sex couples from marrying.

They also argued that the law was originally passed for racist reasons and was intended to bar interracial couples from marrying. But Ball yesterday questioned that interpretation of the law's origin.

Lawyers for the state argued that it mattered only that the law is 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.

Attorney General Thomas F. Reilly, who is charged with defending the law in court, said Ball ''is respecting the rights of other states to make their own decisions on same-sex marriage."

''If we expect states to honor our laws, we should honor and respect their laws and their rights to make their own decisions; that's what this comes down to," Reilly said yesterday.

Last May, at Romney's behest, Reilly ordered four communities to stop issuing marriage licenses to out-of-state same-sex couples.

In an 87-page brief submitted last month, Reilly argued that the 1913 law ''is an important tool in avoiding a national backlash" against gay marriage, because it will allow states to consider the contentious issue ''in their own due course."

Granda said she was disappointed that ''the court is willing to allow Massachusetts to hide behind the discriminatory laws of other states to justify unequal treatment of people when they come here."

The plaintiffs and other critics of the 1913 law said it was established because officials feared that Massachusetts would become a mecca for couples from the 29 states that prohibited interracial marriage at that time.

But Ball cast doubt on the notion that the law is rooted in racism, saying that the state ''set forth credible evidence that the original goal of the drafters was to prevent evasion of existing divorce laws, not the limitation of interracial marriages."

Reilly's brief noted that the law was first proposed in 1912 by the National Conference of Commissioners on Uniform State Laws, a body of judges, professors, scholars, and lawyers who wanted to create roughly equal statutes from state to state.

''Marriage between a white and a negro" was one of the examples of state-specific prohibitions the group mentioned, Reilly's brief stated, but it also cited marriages with a minor without parental consent and marriages within a specified period of time after entry of a final decree in divorce.

Sandi Cote-Whitacre, a resident of Essex Junction, Vt., one of the plaintiffs in the case, said she was disappointed, but not discouraged, by yesterday's decision.

Cote-Whitacre married her partner of 37 years in Provincetown the day after gay marriage was legalized. Even though she and her partner didn't hide their out-of-state residency, the Provincetown clerk issued them a marriage license.

''We knew we were in this for the long haul, and that there would be different stages," Cote-Whitacre said.

''This was stage one," she said. ''We're confident that we will prevail. We will. I'm convinced of that."