- The Washington Times - Wednesday, August 18, 2004

BOSTON (AP) — A state judge yesterday rejected a challenge of a 1913 law that bars out-of-state homosexuals from “marrying” in Massachusetts.

Superior Court Judge Carol Ball denied a request by eight homosexual couples from other states for a preliminary injunction blocking enforcement of the law, which bars nonresidents from marrying in Massachusetts if the marriage would not be legal in the couple’s home state.

A spokesman for Attorney General Tom Reilly welcomed the ruling yesterday, saying it “supports the principle that … Massachusetts has a legitimate interest to respect the rights of other states to determine their own marriage laws.”

An attorney for the plaintiffs said they are considering several avenues of appeal, and think the case ultimately will be decided by the Massachusetts Supreme Judicial Court, which ordered the nation’s first legal homosexual “marriages.”

“We always knew this was really just round one, and round two will be at the appellate court,” said Michele Granda, an attorney with Gay & Lesbian Advocates & Defenders.

Since a November ruling by the state’s high court paved the way for residents to “marry” persons of the same sex beginning May 17, homosexual-rights advocates have made out-of-state couples their next legal frontier.

Gov. Mitt Romney cited the 1913 law in directing city and town clerks to turn away nonresident couples seeking licenses. The eight couples who sued — from Connecticut, Rhode Island, New Hampshire, Vermont, Maine and New York — said the law was inherently discriminatory.

But Judge Ball said the law, as enforced, is applied equally to all nonresidents. For instance, it has been used to stop marriages of couples who didn’t meet their home-state age requirement for marriage.

“Clerks were instructed to do so for all couples and all impediments, not just for same-sex couples,” Judge Ball wrote.

Judge Ball said the state has a rational reason to ensure that marriages it approves have validity in other states. However, she also said that she sympathized with the plaintiffs and was “troubled” by the state’s decision to suddenly begin enforcing the 1913 law.

Legal authorities said Judge Ball’s decision does not hold out much hope that the plaintiffs can prevail on appeal.

“Judge Ball is obviously expressing sympathy for the plaintiffs, but ultimately she concludes that the statute is facially valid and she doesn’t seem to see any evidence that there is anything wrong with what the state is doing,” said Paul Martinek, publisher and editor in chief of Lawyers Weekly USA.

A press secretary for Mr. Romney declined to comment on pending litigation.

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