Appeal unlikely on gay marriage ruling
on Mar 30, 2006 at 3:46 pm
Massachusetts’ highest state court, in a ruling Thursday against marriage licenses for most out-of-state gay couples who seek to get married in the state, decided one federal constitutional issue. Attorneys for the couples involved, however, apparently will not challenge that ruling in the U.S. Supreme Court. Instead, they will focus on trying in state court to narrow the impact of the overall decision. (The state court’s ruling in Cote-Whitacre v. Department of Public Health can be found here. Thanks to Howard Bashman for a workable link.)
In 2003, the Massacbusetts Supreme Judicial Court ruled that the state may not bar marriage of same-sex couples. That decision was based solely on the state’s constitution, and thus that ruling could not be challenged in federal court. But, in the sequel case decided Thursday, the state court ruled on a claim that the denial of a chance to marry for non-resident couples violated the privileges and immunities clause of the U.S. Constitution’s Article IV. That is the only aspect of the ruling that would have been within the Supreme Court’s reach.
After the initial 2003 ruling in favor of same-sex marriage in the state, Gov. Mitt Romney moved to limit the decision’s scope, bringing back into play an unused 1913 law that said no marriage could be performed in Massachusets for out-of-state residents if their marriage “would be void” in their home state. County clerks around the state were told to enforce this provision rigorously.(UPDATE: This should be “municipal clerks.” See Comment below by “Wave Maker.”)
Eight same-sex couples from other states, for whom clerks either had refused marriage licenses or refused to record a performed marriage, brought a series of challenges to those restrictions. One of their claims was that these denials denied them the federal guarantee that citizens of each state are entitled to “all privileges and immunities” of citizens of other states. The refusal to let them marry, as Massachusetts gay couples may, discriminated against them, they contended. (Their other arguments were claims of violations of the state constitution. They lost on those points, too.)
In rejecting the Article IV challenge, the state’s highest court ruled that the state was not discriminating between all residents and all non-residents, but rather was only treating non-residents differently who could not marry at home from non-residents who could (such as opposite-sex couples). This differing treatment, the state court said, works to “promote interstate harmony by mandating respect for the laws of other jurisdictions.”
The court stated its reasons in two opinions representing the views of five (and perhaps six) of the seven justices. One justice dissented on all points.
Michele Granda, a staff attorney for the Gay & Lesiban Advocates & Defenders, who represented the couples, said that attorneys were still studying the ruling, but added that an appeal to the Supreme Court on the one federal point is “pretty unlikely; I don’t see that happening.”
The decision does allow three couples — two from Rhode Island and one from New York — to try to persuade a lower state court that same-sex marriage is not totally outlawed in their home states, so they should be permitted to marry in Massachusetts. Their chance to make that claim resulted from a more favorable interpretation, for them, of state statutes than the state attorney general had advanced; the attorney general’s broader interpretation of the statutes’ ban was rejected on a 4-3 vote.
