A pair of lawsuits were filed in Boston on June 17 to strike down the 1913 law that Massachusetts Republican Gov. Mitt Romney is using to prevent out-of-state same-sex couples from marrying. Democratic Attorney General Thomas Reilly has backed up Romney with a letter to town clerks ordering them not to perform such marriages.
The Attorneys General of New York, Connecticut and Rhode Island have offered varying interpretations that same-sex marriages conducted in Massachusetts might be recognized under their state laws.
One of the legal challenges is by eight gay and lesbian couples who reside in the six states that adjoin Massachusetts; the other is by a dozen local jurisdictions that issue marriage licenses. There were filed one month to the day after the state began issuing marriage license to same-sex couples.
Gay & Lesbian Defenders (GLAD) filed the suit on behalf of the couples. The group led the fight in the Massachusetts courts to win the right to marry.
'We believe that Section 11 (the 1913 law that was created to stop interracial marriage in Massachusetts by those whose home states did not allow it) violates both the liberty and equality provisions of the Massachusetts Constitution,' said GLAD attorney Mary Bonauto.
'This was a law that clerks were instructed to ignore for decades, yet the governor pulled it off the shelves just to deny marriage to some gay and lesbian couples. Plainly stated, the Constitution trumps Section 11 under the Goodridge decision' that said barring same-sex marriage was unconstitutional.
Harvard law professor Randall Kennedy added, 'That authorities today would seek to cabin the Supreme Judicial Court's landmark Goodridge ruling by resuscitating a statute tainted by racism is profoundly disturbing and regrettable.'
The suit also claims that the 1913 provision violates the Privileges and Immunities Clause of the US Constitution.
The eight couples who are the plaintiffs provide an extraordinary tableau of gays and lesbians within our society. Among them are doctors, nurses, teachers, social workers, and an agent with the FBI.
Lead plaintiffs Sandi and Bobbi Cote-Whitacre, Vermont residents in their mid-fifties, met thirty-six years ago when both were in the Army. Sandi works for the Department of Homeland Security and Bobbi for the state. A doctor refused to honor their power of attorney when Sandi had medical problems.
'We don't discriminate in Somerville City Hall, and we're not about to start now,' said Mayor Joseph A. Curtatone, one of the towns that filed their lawsuit. 'This goes beyond the issue of whether or not you agree with same-sex marriage or not. It's a question of fairness and equity.'
'This is a law that we have not enforced in most of the lifetimes of the people that have been working here,' said Michael Sullivan, the Mayor of Cambridge. 'There is inherent discrimination to it, and on top of that there is the potential that as a community we would be a defendant in a case' filed by couples denied a license.
Both cases seek to enjoin enforcement of the dated statute and to have it declared unconstitutional.
