Massachusetts Curb on Gay Marriage Upheld

The highest court in Massachusetts on Thursday ruled that city and town clerks may not issue marriage licenses to same-sex couples from out of state.

“The laws of this commonwealth have not endowed nonresidents with an unfettered right to marry,” Justice Francis Spina wrote for the majority in the 38-page Supreme Judicial Court opinion. “Only nonresident couples who come to Massachusetts and intend to reside in this commonwealth thereafter can be issued a marriage license.”

In two separate opinions, six justices ruled against eight same-sex couples and 13 town clerks who challenged a 1913 law that bars couples from out of state from marrying in Massachusetts if their unions would not be recognized in their home states. Only one member of the court, Justice Roderick Ireland, dissented. The little-known statute was drafted at a time when Massachusetts permitted mixed-race couples to marry but most other states did not.

Gov. Mitt Romney, a vocal opponent of gay and lesbian marriage, invoked the provision in 2004 when Massachusetts became the only state to allow same-sex marriage.

“This is an important victory for those of us who wanted to preserve traditional marriage and to make sure that the mistake of Massachusetts doesn’t become the mistake of the entire country,” Romney said Thursday. The Republican governor is widely expected to seek his party’s presidential nomination in 2008.

Michele Granda, a staff attorney for Gay and Lesbian Advocates and Defenders in Boston, represented the couples who sought to marry in Massachusetts. Granda said she was disappointed by the decision but called it an opportunity to review a law that the court called confusing.

“The court made it very clear that this is an unworkable law,” she said. “We do think that it would be appropriate for the Legislature to repeal it now.” Romney had tried unsuccessfully to circumvent the Supreme Judicial Court ruling that granted gays and lesbians the right to marry in Massachusetts.

His use of the 1913 regulation was seen as a last-ditch effort to prevent his state from becoming what he called “the Las Vegas of same-sex marriage.” Lawyers for the lesbian and gay couples from outside Massachusetts said the 48-word law “sat on the shelf unused for decades” before Romney resurrected it.

In ruling in late 2003 that same-sex couples were constitutionally entitled to marry in Massachusetts, the court gave the Legislature six months to craft a law that would accommodate its stipulations.

Debate raged for weeks in a special constitutional convention. Lawmakers ultimately approved an amendment barring marriage by gays and lesbians but permitting civil unions. Under the cumbersome amendment procedure of Massachusetts, that measure must face an additional vote by the full Legislature in the current year’s session.

If approved once again, the bill would go to voters. In surveys, a majority of Massachusetts voters consistently have voiced support for same-sex marriage.

Matt Foreman, executive director of the National Gay and Lesbian Task Force in Washington, charged Thursday that in unearthing the 1913 law, Romney had “used gay and lesbian people for partisan political gain -- that’s really what this is about.” Foreman said he and his partner had intended to be married in Massachusetts during a short window in 2004 when a handful of town clerks were defying the governor by issuing licenses to same-sex couples.

Foreman said the clerk in Attleboro was processing their paperwork when he took a break for lunch. By the time they all returned from lunch, the clerk had received a strongly worded order that kept him from granting the license.

“So I personally felt the long and mean hand of Gov. Romney,” Foreman said.

About 7,000 same-sex couples have married in Massachusetts.