SJC hears challenge to marriage law

In a case that could intensify the fierce debate about same-sex marriage in the United States, the Supreme Judicial Court heard arguments yesterday in a challenge to a 1913 state law that the Commonwealth has used to block out-of-state gay couples from marrying here.

A lawyer for eight lesbian and gay couples from outside Massachusetts told the state's highest court that the Romney administration dusted off a law that had ''sat on the shelf unused for decades" in a blatantly discriminatory and unconstitutional ploy.

''The Commonwealth turned on a dime" only days after gay marriage became legal on May 17, 2004, when it began invoking an obscure 48-word law that says Massachusetts cannot marry an out-of-state couple if their marriage would be void in their home state, said Michele E. Granda, a lawyer for Gay & Lesbian Advocates & Defenders.

Kevin Batt, a lawyer for 13 Massachusetts city and town clerks who are also challenging the law, said it has turned clerks into ''agents of selective enforcement" because they were never told to invoke the statute before.

But a lawyer for Attorney General Thomas F. Reilly, who says he personally supports same-sex marriage but must defend the law as the state's top lawyer, countered that Massachusetts is applying it both to gay and straight couples. Peter Sacks, a deputy in Reilly's office, said Massachusetts would infringe on the laws and practices of other states if it ignored their marriage statutes.

The challenge to the 1913 law is being closely watched across the country. The SJC's landmark 2003 decision legalizing same-sex marriage transformed the political and cultural landscape, prodding 11 states to ban gay marriage in constitutional amendments last fall.

If the SJC struck down the 1913 law, out-of-state same-sex couples who married in Massachusetts might return to their home states and demand marriage rights there.

Eight couples from Connecticut, Rhode Island, New Hampshire, Vermont, Maine, and New York sued the state after Reilly, at the request of Romney, told municipal clerks to deny marriage licenses to same-sex couples if they had no intention of living in Massachusetts, the only state to legalize same-sex marriage.

They included Wendy Becker, 44, and Mary Norton, 45, of Providence, who have been together for 17 years and have two children. They filed a notice of intention to marry in Attleboro but were not issued a license because of the law.

''We were excited by the prospect," said Becker, a professor in the School of Social Work at Rhode Island College. ''It hadn't occurred to us that the governor would invoke something that hadn't ever been used before."

Romney said last year he did not want Massachusetts to become the ''Las Vegas of same-sex marriage" and that he had a duty to obey the 92-year-old law. Romney, who is considering running for president in 2008, opposes gay marriage and civil unions.

Last August, in response to the suits brought by the eight couples and the clerks, Superior Court Judge Carol S. Ball said the 1913 law violated the spirit of the decision legalizing gay marriage. But she held that the law was not discriminatory.

Granda, the GLAD lawyer, contended yesterday that the law violates equal protection provisions of both the federal and state constitutions. In addition, she argued that state officials have misapplied the law to all out-of-state couples, even though, by her reckoning, only 14 states declare same same-sex marriages void.

Justice Roderick L. Ireland, the only black jurist on the high court, asked Granda whether Massachusetts originally adopted the 1913 law to prohibit heterosexual couples from evading state laws barring interracial marriage.

''That's definitely a part of the legal history," said Granda. Massachusetts passed the law after state legislatures, alarmed by the interracial marriages of the black heavyweight boxer Jack Johnson, approved laws against miscegenation, she explained afterward.

But Sacks, of the attorney general's office, said the law had nothing to do with race. Interracial couples from out of state, he said, could legally marry in Massachusetts since 1830, when the Commonwealth struck down its own law against miscegenation.

Sacks also disputed Granda's assessment that only 14 states have laws saying that same-sex marriages are void. In fact, about 40 states have such laws, he said.

Andrew Koppelman, a professor of law at Northwestern University, said that even if the SJC struck down the 1913 law, the legal impact of the ruling will be minimal; no laws require other states to recognize the marriages of same-sex couples who come to Massachusetts to wed.

The court is expected to issue a ruling in about four months.

Justice Martha B. Sosman was absent yesterday because she is undergoing treatment for breast cancer, according to Joan Kenney, a spokeswoman for the court. However, Sosman watched a webcast of the hearing and will participate in the ruling.

Jonathan Saltzman can be reached at jsaltzman@globe.com