Gay couples argue that 1913 law is discriminatory

By Jay Lindsay, Associated Press Writer | July 13, 2004

BOSTON -- A 1913 Massachusetts law that is being used to prevent out-of-state gays from getting married here is discriminatory and should be struck down, a lawyer for eight same-sex couples told a judge Tuesday.

Attorney Michele Granda asked Superior Court Judge Carol Ball to issue a preliminary injunction blocking the state from enforcing the 91-year-old law, which prohibits marriages that would be illegal in a couple's home state. She said the statute violates both the U.S. Constitution and Massachusetts law.

The couples are suing to overturn the law, which the state has used to bar out-of-state couples from marrying in Massachusetts, the only state where such marriages are recognized.

"We're asking the court to tear down the fence of discrimination that's been erected around (the state's) borders," she said.

But an attorney for the state countered that the law protects other states' right to define marriage as they see fit, a principle repeatedly cited by the Massachusetts high court in its landmark November ruling legalizing gay marriage.

Assistant Attorney General Peter Sacks said that ruling defines marriage as "two willing spouses and an approving state." Since no other state allows gay marriages, that standard is not met anywhere but Massachusetts, he said.

Judge Ball did not indicate when she would rule on the request to block enforcement of the 1913 law. She gave plaintiffs until July 23 to file additional briefs, and the state until Aug. 2 to respond.

However, Ball did say in court, "From what I've read so far, it appears the state is applying the law in a procedurally non-discriminatory manner."

Republican Gov. Mitt Romney, a gay marriage opponent, has invoked the 1913 law to bar gay couples from other states from getting married in Massachusetts.

When gay marriages began on May 17, some municipal clerks openly defied Romney and issued licenses to anyone who applied. But Massachusetts' attorney general, acting on Romney's instructions, ordered them to stop.

Legal experts have said the law was passed to prevent interracial couples from getting married. But the attorney general has said there is no evidence that lawmakers were motivated by race in passing the law.

At any rate, the law was ignored for decades before the high court cleared the way for the nation's first state-sanctioned gay weddings to begin this spring, Granda said.

"The commonwealth is clearly over-enforcing the statute," she said.

Sacks said enforcement of the statute has increased, "because there's much more reason than there was before to expect violations."

Granda said the state is treating different groups of people unequally by enforcing the law.

"The commonwealth can't use its formidable authority to bar gays and lesbians from marrying simply because they are gays and lesbians," she said. "Absolute equality before the law is fundamental to the constitution."

Sacks said the state's enforcement of the law respects other states' rights.

"People can come here from out of state to get married, if they're coming from a jurisdiction where it's recognized," he said.

"The potential for friction with other states can't be minimized," he said.

Of the eight couples who filed the lawsuit, two are from Connecticut, two from Rhode Island, and one each from New Hampshire, Vermont, Maine and New York.

Five of the couples were issued licenses in Massachusetts by clerks who ignored the 1913 law, while the three others were turned away when they tried to get marriage licenses.

The plaintiffs also ask that if the court finds the law constitutional, that it only invalidate marriages of residents of states where same-sex marriage is banned. In some states, including Rhode Island, the law is silent on the definition of marriage.

Among the couples married were Amy Zimmerman, a 31-year-old former Andover resident, and Tanya Wexler, 33, who lives with Zimmerman in New York City.

"It feels unfair," Zimmerman said of the possibility her marriage could be invalidated. "It feels hurtful. It feels discriminatory."

"I grew up here, my family and friends are here, my roots are here. To come back to have a ceremony in my dad's backyard seems like an obvious thing to do," she said.

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