Massachusetts Court Weighs Out-of-State Gay Marriage

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Massachusetts' highest court is hearing oral arguments today in two cases that challenge a law that bans same-sex couples from out of state marrying in Massachusetts. Last year, the state became the first and only one in the nation to legalize same-sex marriage, but a law that has been on the books since 1913 has prevented out-of-state gay and lesbian couples from taking advantage of the landmark ruling. NPR's Anthony Brooks reports.

ANTHONY BROOKS reporting:

When the Massachusetts Supreme Judicial Court ruled that the state must allow same-sex couples the right to marry, Sandy(ph) and Bobby Cody Whitaker(ph) were elated. Both women are 58 years old and have been together for 38 years. They live in Vermont where they were joined in a civil union, but Sandy Cody Whitaker says they always wanted to marry.

Ms. SANDY CODY WHITAKER: We met and fell in love in '68 and we are from the old school where you find your soul mate and then you find the person you want to spend the rest of your life with and you get married.

BROOKS: So in May of 2004, on the first day that same-sex marriage became legal in Massachusetts, the Vermont couple came south to get married.

Ms. S. CODY WHITAKER: We came to Provincetown and we got a license the first day and we got married the next day by a justice of the peace.

BROOKS: But soon after, the couple learned that the marriage was invalid. Governor Mitt Romney, a Republican opposed to same-sex marriage, promised to enforce an obscure residency law that has been on the books since 1913. The law says non-resident couples cannot marry in Massachusetts if they are prohibited from marrying in their home states. Thirteen municipal clerks across Massachusetts are challenging the law as discriminatory. So are Sandy and Bobby Cody Whitaker along with seven other out-of-state couples. They argue that the Goodrich decision, which legalized same-sex marriage in Massachusetts, must also allow out-of-state couples to marry in the state.

Ms. MICHELE GRONDIN (Attorney, GLAAD): This law is allowing Massachusetts officials to do exactly what Goodrich said they could not do.

BROOKS: That's Michele Grondin, an attorney with the gay and lesbian advocacy group GLAAD, who's in court today arguing that the 1913 law should be overturned.

Ms. GRONDIN: Now the commonwealth has taken this law off the shelf, dusted it off and is using it for the very purpose of denying same-sex couples the ability to marry not because they're from another state but simply because they are of the same sex. That's what Goodrich said they could not do.

BROOKS: Massachusetts Attorney General Thomas Reilly is defending the 1913 law but not commenting about it. His legal brief says the law does not discriminate against same-sex couples and is being enforced fairly across the state. The brief also says the law helps other states protect their own definition of marriage. If the law is overturned, it could have national consequences. Gay and lesbian couples would be free to come to the Bay State to get married, then sue for recognition of their marriage in their home states. That concerns Peter Sprigg with the Family Research Council in Washington DC.

Mr. PETER SPRIGG (Family Research Council): If this law were to be struck down, it would seriously undermine the right of every other state in the country to determine their own standards for marriage because it will effectively mean that every state in the nation is governed by Massachusetts marriage law, not by its own.

BROOKS: Last August, a Superior Court judge said she was troubled by the state's decision to suddenly enforce the 1913 law after gay marriage became legal but she did uphold the statute. Those pushing to overturn it are hoping for a different outcome from the state's highest court, the same court that legalized same-sex marriage in Massachusetts. Anthony Brooks, NPR News.

MONTAGNE: This is NPR News.

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