Suit challenges ban on same-sex marriage for nonresidents

Days after gay and lesbian couples began marrying in Massachusetts last year, Les Schoof and Ed Butler drove from their inn in Hart's Location, N.H., and joined the line at the marriage license window at Somerville City Hall.

When the two men reached the head of the line, they were asked to step to the side and were queried about where they resided and whether they planned to live in Massachusetts. No, they said, and the clerk politely, but firmly, turned them down.

That denial and those of seven other couples from New England and New York are scheduled to be the subject of arguments today in the Supreme Judicial Court, which legalized gay marriage in Massachusetts in a landmark November 2003 ruling.

At issue is a 1913 law that forbade out-of-state couples from marrying if their union would not be legally recognized in their own state.

As same-sex marriage became legal on May 17, 2004, Governor Mitt Romney ordered city and town clerks to enforce the law and wrote to other governors to warn that out-of-state couples would not be allowed to marry in Massachusetts.

Schoof, 54, said he and his partner of almost 30 years chose Somerville in hopes that they would get a license there. He also knew that his application would probably end up in court, he said.

''There is a sense from the people involved with the case that we're doing the right thing in litigating this, and eventually -- hopefully, sooner rather than later -- this will come to pass," he said.

Gay & Lesbian Advocates & Defenders sued the state on behalf of Butler and Schoof and the other seven couples to have the 1913 law struck down. GLAD is the same group that brought the original lawsuit that resulted in the legalization of same-sex marriage.

''Just as the court said that same-sex couples have the right to a marriage license, then it's really wrong to think that officials in the Commonwealth could deny that right," said Gary Buseck, legal director at GLAD.

Eric Fehrnstrom, a spokesman for Romney, said, ''The law is simple . . . Massachusetts does not get to make marriage law for the other 49 states."

Fehrnstrom said Attorney General Thomas F. Reilly ''should be commended for his strong defense of this important principle."