Out of State, Out of Luck

Challenges to 1913 marriage law fail first test in Massachusetts court

A Massachusetts trial judge ruled on August 18 that out-of-state same-sex couples who are suing to marry in Massachusetts are unlikely to win their case, and thus not entitled to a preliminary injunction requiring the state to allow them to marry while their case is pending. In a companion ruling, the judge, Superior Court Justice Carol S. Ball, found that a lawsuit by a group of town clerks, who sued to be able to issue licenses to out-of-state couples, must be dismissed due to lack of jurisdiction by the court.

In rejecting these arguments, Ball emphasized that the Goodridge decision repeatedly refers to the rights of Massachusetts residents, and that the court said it was not changing the marriage statute in any way—including the 1913 provision—just adopting a new common law definition of marriage. Ball acknowledged, however, that the state’s application of the 1913 law “violates the spirit of Goodridge,” and found “troubling the timing of [its] resurrection.”

Nonetheless, Ball found that, on its face, the statute did not distinguish between same-sex and opposite-sex couples, and that the state had been careful to instruct clerks to enforce the law in a non-discriminatory manner.

Ball also noted that the court had not spoken of the right to marry as a “fundamental” right under the state constitution, but instead premised its ruling on the lack of any legitimate, rational reason by the state for opposing same-sex marriages. Consequently, the 1913 law could be upheld if the state has a legitimate interest in issuing marriage licenses that are not purely symbolic, but will actually be honored in the couples’ home states.

Turning to the clerks’ lawsuit, Ball invoked a long line of Massachusetts cases that bar constitutional challenges by local government entities created by the state against the state.

Ball’s decision denied preliminary relief, and does not preclude the plaintiffs from raising new arguments or attempting to appeal to a higher court. She declined to rule on whether “irreparable injury” would result from not issuing relief since she believed that the plaintiffs are unlikely to prevail on the merits of their claim.

Speaking for GLAD, staff attorney Michele Granda expressed hope for ultimate success in the case. “This case is still alive,” she said. “The trial court will hear further argument on the merits and the case will be decided on appeal. We’re confident of our ultimate success.”

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