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Opening Up Marriage in Mass.

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Two lawsuits take aim at Gov. Romney’s bar to out-of-state gay weddings

On Thursday, June 17, exactly one month after Massachusetts began marrying same-sex couples, two lawsuits against the state were announced, challenging the decision of Gov. Mitt Romney to deny marriage licenses to out-of-state, same-sex couples who do not attest to their intention to move to the state.

One, filed in Suffolk Superior Court on June 18 by Gay & Lesbian Advocates and Defenders (GLAD), the Boston-based legal rights organization that also won last November’s Goodrich case permitting same-sex marriages in the state, is on behalf of eight out-of-state gay and lesbian couples.

The other suit represents 12 cities and towns in Massachusetts.

The municipalities are being represented pro bono by the Boston law firm of Palmer & Dodge. The firm’s lawyers will argue that an archaic 1913 law, originally put in place to discourage interracial marriage, is now being used to discriminate against some gay and lesbian couples, and that city and town clerks are being forced into applying a discriminatory policy on behalf of the state.

Both cases hinge on the precedence of Goodridge.

The GLAD lawsuit, named Cote-Whitaker vs. Department of Health, argues that the courts already decided in the Goodridge case that gays and lesbians could not be denied the right to marry in Massachusetts.

The Department of Health, which regulates the issuance of marriage licenses through a municipality’s town clerk’s office, would thus be violating a Supreme Court ruling.

The suit will also argue that the 1913 law is a discriminatory piece of legislation and discrimination is prohibited by both the Massachusetts and US constitutions.

“We believe that Section 11 [the 1913 statute] violates both the liberty and equality provisions of the Massachusetts constituti­on,” said Mary Bonauto, civil rights director of GLAD. “This was a law that clerks were instructed to ignore for decades, yet the governor pulled it off the shelves just to deny marriage to gay and lesbian couples.”

Among the plaintiffs in this case are Tanya Wexler, 33, and Amy Zimmerman, 31, of Greenwich Village. They are the only couple who are New York State residents, joining seven couples from the other five New England states besides Massachusetts.

The couple, who have been together for 13 years, got married on May 19 “in the hallway of Somerville City Hall.”

“For us, it’s about three things,” said Wexler, discussing their decision to join the lawsuit. “Our kids, our relationship, and Massachusetts because of Amy’s connection [to the state].”

Zimmerman, like many of the plaintiffs in the case, has strong ties to Massachusetts, despite the fact that she does not live there. She grew up in the town of Andover, north of Boston, where her parents still reside. In fact, the day after the couple’s rushed May 19 marriage, which Wexler and Zimmerman said they “thought they should do as quickly as possible,” they held a ceremony for family and friends in Zimmerman’s “dad’s backyard.”

“It was the most warm, welcoming feeling,” said Zimmerman of the atmosphere at Somerville Town Hall. “The mayor was there; the city clerk was there; people were giving out flowers. They wanted us to be there. They wanted us to be recognized. They wanted us to be married.”

“Now we wait for the legal process to take its course,” said Wexler.

Immediately after gay marriage began in Massachusetts on May 17, Romney, a Republican, in a move unheard of by state legislators, demanded that the towns of Somerville, Provincetown, and Worcester, which had formally announced their intention to issue licenses to out-of-state, same-sex couples, hand over copies of the marriage applications they received.

Those documents in hand, Romney instructed Massachusetts Attorney General Tom Reilly to deliver “cease-and-desist” orders to the town clerks.

These three municipalities, joined by Acton, Burlington, Cambridge, Marblehead, Nantucket, Northampton, Plymouth, Sherborn, and Westford, are plaintiffs in the case against the state.

“We don’t want to condone any discrimination here at Worcester City Hall,” said Worcester Mayor Tim Murray, adding that the 1913 law is a discriminatory statute that has not been observed or applied in anyone’s memory. “For the governor to scour the books for something to hang his hat on is discriminatory and we don’t want to be part of it.”

Murray said that the Town of Worcester has suspended the granting of marriage licenses to out-of-state couples until the matter has been resolved in court.

“We’ve stopped just because we don’t want to cause people any undue harm,” he said, adding that “we want this to get resolved as soon as possible” and “I think it will go up the [legal] food chain pretty quickly.”

“The Supreme Judicial Court of Massachusetts has issued its decision,” said Murray, referring to the Goodrich outcome. “That’s the law. Discrimination in any shape or form should not be tolerated.”

Michael A. Sullivan, mayor of Cambridge, said that his city would continue granting licenses to out-of-state couples who signed a required affidavit attesting to their intention to move to the state.

“We’re staying in compliance with the state’s [current] regulations,” he said. “If couples sign the affidavit saying they plan to move here, they meet the requirement.”

Sullivan added that he viewed the sudden enforcement of the affidavit requirement, in addition to the 1913 statute, discriminatory.

“The point of us acting as a plaintiff is that this was never asked of any out-of-state couples in the past. It seemed in itself to be problematic.”

Sullivan said that there was also an “economic aspect” to joining the lawsuit against the state. In the event that the municipality lost a discrimination lawsuit, the town would be “held legally responsible for not only damages, but the legal costs incurred by both sides.”

Shawn Feddeman, press secretary to Romney, told Gay City News, “Gov. Romney respects the right of any individual or groups to sue [the Massachusetts government]. He hopes that they respect his responsibility to uphold his oath as governor and enforce the laws of the commonweal­th.”

When asked to comment on the lawsuit itself, Feddeman said, “It’s tough for me to comment on that because it is impending litigation.”

“The attorney general has commented on the validity of the law and the legislation has not changed it,” she said.

Reilly has interpreted the 1913 law to mean that because same-sex marriage is not permitted in any other state, marriages contracted in Massachusetts by residents of the 49 other states are “null and void.”

But eleven states, including New York, have not passed Defense of Marriage Acts or amendments to their state Constitutions specifically defining marriage as between a man and a woman.

In New York, Attorney General Eliot Spitzer forwarded to Romney his office’s March opinion that although same-sex marriages are not sanctioned under this state’s law, legally valid gay or lesbian marriages performed in other jurisdictions will be recognized. The attorneys general of Connecticut, Rhode Island, and Vermont, home states to some of the other plaintiffs in the GLAD lawsuit, sent Romney similar conclusions about marriage recognition in their jurisdictions.

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Updated 5:14 pm, July 20, 2018
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