Decisions on out-of-staters in courts' hands

Legal specialists say that the opinions issued yesterday by the attorneys general of Rhode Island and Connecticut will not be the final word on whether gay marriages are recognized in those states. That determination, as was the case in Massachusetts, will come from the courts.

"In the end, it's a judicial decision to be made by a court," said Marc Perlin, associate dean of Suffolk University Law School. "Anyone seeking recognition of a same-sex marriage in Rhode Island would be well advised to seek [legal] guidance."

Barbara Margolis, a Rhode Island lawyer who supports gay marriage, said she saw in Rhode Island Attorney General Patrick C. Lynch's carefully worded opinion a veiled request for a test case that would determine if same-sex couples can marry in Rhode Island.

"He's saying, `Bring me the right case,' " Margolis said of Lynch. "He doesn't want to create a stampede of Rhode Islanders crossing the border."

Legal specialists suggested a likely scenario that would bring the issue to Rhode Island courts: A gay Rhode Island couple marries in Massachusetts and returns home to find out that they don't receive the same employee benefits as married couples. The couple could then sue in state court, which would decide whether the Massachusetts marriage should be recognized in Rhode Island.

But lawyers said it is difficult to predict the outcome. As Lynch noted in his statement, Rhode Island has not yet had a gay-marriage case. Neither Connecticut nor Rhode Island, however, has a law limiting marriage to one man and one woman.

Mary Bonauto, the lawyer for Gay & Lesbian Advocates & Defenders who represented the seven same-sex couples who successfully sued Massachusetts for the right to marry, was hopeful.

"Overall, I thought they were strong statements," Bonauto said. "They both, like many of the New England states, have a wide variety of laws and policies that acknowledge and afford rights to gays and lesbians."

Governor Mitt Romney has argued that a 1913 Massachusetts law means that out-of-state gay couples cannot be legally married in Massachusetts if such a marriage would be "void" in their home state. And since no other state besides Massachusetts recognizes gay marriage, he has argued, out-of-state couples cannot legally marry here.

Connecticut Attorney General Richard Blumenthal said in an opinion yesterday that there is a difference between whether a marriage is "void" and whether it is permitted. "As stated in our opinion, same-sex marriages are not authorized in Connecticut," he wrote. "But that fact does not make them automatically void, because our state has no statute declaring same-sex marriages void."

Lynch noted in a statement that the only marriages in his state that have been deemed void involved bigamy, incest, mental incompetence, or marriages in which at least one spouse never intended to be married.

"[Lynch's statement] does not give Governor Romney adequate reason to deny marriage licenses to persons from Rhode Island," said Andrew Koppelman, a professor of law and political science at Northwestern University School of Law. "At this point, I think he's got to issue marriage licenses to persons from Rhode Island."

Lynch suggested that Rhode Island would recognize same-sex marriages performed in Massachusetts if those unions do not "run contrary to the strong public policy of this state." While he noted that public policy is determined by statute, legal precedent, and common law, he did not say whether gay marriage was at odds with that public policy.

"There's no hint whatsoever about what the decision might be," Koppelman said. "I think he's honestly saying he doesn't know."

Kathleen Burge can be reached at kburge@globe.com.