Gay marriage ruling seen invigorating movement in other states

BOSTON --Gay-rights opponents predict that a ruling from the Massachusetts high court barring out-of-state same-sex couples from marrying here could reinvigorate efforts in a handful of states that do not expressly prohibit such marriages.

Mathew Staver, president of Liberty Counsel, a conservative legal group based in Florida, said the high court's ruling could strengthen opposition in states that now do not have either a law or a constitutional amendment banning same-sex marriage.

"I think that was already in process, but I think that this was just an extra impetus for a state to get a Defense of Marriage Act or a constitutional amendment," Staver said.

The Supreme Judicial Court on Thursday upheld a 1913 state law that bars nonresidents from marrying in Massachusetts if their marriage would not be recognized in their home state.

However, the SJC -- the same court that made Massachusetts the first state in the country to legalize gay marriage in 2003 -- sent the cases of three couples from New York and Rhode Island back to a lower court to determine whether gay marriage is prohibited in those states.

It was a law that was virtually unheard of until the first same-sex couples began lining up to get marriage licenses -- and Gov. Mitt Romney directed clerks not to give licenses to out-of-state couples. The eight couples, some of whom received licenses and others who were denied, challenged the legality of the 1913 law in court.

Supporters of same-sex marriage say they will now focus their attention on convincing Superior Court Judge Carol Ball to find that couples from New York and Rhode Island can marry in Massachusetts.

Michele Granda, an attorney with Gay & Lesbian Advocate & Defenders, which represented the eight out-of-state couples who challenged the 1913 law, said although opponents may use the court's ruling to step up efforts to pass prohibitions against gay marriage, "there's nothing in this decision that requires any state to do anything."

"This case was about Massachusetts law," Granda said. "This doesn't change any other state's ability to decide for itself what position they want to take on the rights of same-sex couples in their states."

The high court instructed Ball to look at the state constitutions, common law and appellate court decisions in New York and Rhode Island to decide whether there is anything that expressly prohibits same-sex marriage in those states.

Mark Mason, president-elect of the Massachusetts Bar Association, said Ball's decision about Rhode Island and New York could also affect three other states that don't specifically prohibit gay marriage: New Jersey, New Mexico and Wisconsin.

"One can envision litigation from those states representing their claims in Massachusetts," said Mason.

Andrew Koppelman, a law professor at Northwestern University, said he believes Ball will find that gay marriage is expressly banned in New York because of two appellate court decisions there that declared same-sex marriages void. Koppelman, who joined a friend-of-the-court brief supporting the same-sex couples, said he thinks Ball will rule the same way on Rhode Island, although the law there is silent and there are no appellate decisions to look to for precedent.

Koppelman predicts that the court's ruling on the 1913 law will have little impact on the national gay-marriage debate and could simply mean more couples will get married in Canada, where same-sex marriage is legal.

"The concrete consequence of this decision is to slightly suppress tourism in Boston, and this is good news for hotel owners in Canada," he said.

Some same-sex marriage advocates said now that the 1913 ruling has come down, they are turning their attention to stopping a bid to put a question on the 2008 ballot that would define marriage as a union between a man and a woman. The question has gathered enough signatures from registered voters and now needs approval from the state Legislature to be placed on the ballot.

"Our all-out focus is on defeating the state of Massachusetts constitutional amendment. We're trying to defeat it in the Legislature so it never gets to the ballot," said Marc Solomon, campaign director for MassEquality.org, a group organized to preserve same-sex marriage.

Legislators are expected to vote on the question during a constitutional convention in May. To place the question on the ballot, 25 percent of the Legislature -- 50 lawmakers -- would have to approve it in each of two consecutive legislative sessions.

Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, said she doubts an effort to repeal the 1913 law that began in 2004 will gain momentum as a result of the court's ruling Thursday.

"Not only is it not our top priority, it's not even close because we need to focus exclusively on preserving the same-sex marriage rights here," she said. "If we lose the constitutional convention, then the 1913 law doesn't even matter; it's irrelevant."

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Editor's Note: Denise Lavoie is a Boston-based reporter covering the courts and legal issues. She can be reached at dlavoie(at)ap.org