Gay couples from states that explicitly prohibit same-sex unions may not wed in the Bay State, a splintered Massachusetts Supreme Judicial Court ruled on March 30. However, the procedural decision allowed a legal challenge to move forward from couples in New York and Rhode Island, where state law is murky on the subject.
A 1913 Massachusetts law requires that persons from outside the state who marry in Massachusetts may do so only if they meet the legal requirements of their home state. It is unclear if the law had ever been enforced but it has long since fallen into disuse.
But when the Court struck down gender restrictions on marriage and allowed gays to wed, Republican Gov. Mitt Romney and Democratic Attorney General Thomas F. Reilly ordered town clerks to enforce the archaic restriction.
That prompted the clerks and gay and lesbian couples from outside the state to initiate a legal challenge. The case is known as Cote-Whitacre vs. Department of Public Health.
'By giving respect and deference to the legislative enactment and public policy pronouncements of other jurisdictions, it is my hope that principles of comity will have a significant impact on other jurisdictions if, and when' married Massachusetts gay couples move to those states, wrote Justice Francis X. Spina for himself and two other judges.
Chief Justice Margaret Marshall, also writing at least in part for two other judges, found the case not strong enough to issue the injunction that the plaintiffs sought, but she concluded that 'the New York and Rhode Island plaintiff couples should be afforded the opportunity to present evidence that the respective States of residence would not prohibit their marriages.'
Justice John M. Greaney, in a concurring opinion, could 'see no compelling reason to treat couples who travel here wishing to marry less favorably than our own citizens.'
Justice Roderick L. Ireland, in a dissenting opinion, said the Goodridge decision, which allowed for gay marriage, redefined common law to 'prohibit the use of gender in reviewing the marriage license application of any person.'
'Justice Spina turns this concept on its head and appears to ground his reasoning, at least in part, on the notion that if we import the discriminatory laws of other States into our marriage statute, those same discriminating States will somehow, applying the principles of comity, recognize the marriages of Massachusetts same-sex couples' who move there.
''Hope' is an irrational adjudicatory principle. 'Hope' lacks any predictive quality and is not grounded in our jurisprudence,' Ireland wrote.
Michelle Granda was disappointed but not surprised by the decision. The attorney with Gay & Lesbian Advocates & Defenders had argued the case before the Court. She looks forward to arguing the merits of the case before a lower court for the remaining New York and Rhode Island clients.
Human Rights Campaign president Joe Solmonese called the decision 'a speed bump on the long road to fairness.'
Many advocates of gay marriage had mixed feelings. They would have welcomed a positive ruling, but this split decision allows a more limited legal challenge to move forward, even while diffusing some of the scare tactics of the religious right that a 'liberal' Massachusetts court will impose gay marriage upon the whole country.
