TWO LAWSUITS CHALLENGE MASS. OUT-OF-STATE MARRIAGE LAW: From the Boston Globe

Two legal challenges to a 1913 Massachusetts law barring out-of-state couples from gay marriage will be launched this week by a dozen cities and towns and by several couples from outside the Commonwealth, according to an attorney involved in the suits.

Gay and lesbian couples from other states will challenge the law in Suffolk Superior Court tomorrow, the lawyer said. They will be represented by lawyers from Gay & Lesbian Advocates & Defenders, who brought the Goodridge suit that led the Supreme Judicial Court to legalize marriage for same-sex couples in Massachusetts.

GLAD lawyers will argue that the justices in the Goodridge case already decided gays and lesbians could not be denied the right to marry in Massachusetts, that the 1913 law has not been enforced by the state in the recent past, and that it is being put into service now only to discriminate against gay and lesbian couples. They will argue that discrimination is prohibited by both the Massachusetts and US constitutions.

In a parallel suit, clerks from 12 cities and towns, including some that issued licenses to out-of-state couples, will ask the court to allow them to grant licenses to residents of other states. Last month, Attorney General Thomas Reilly ordered a handful of municipal clerks who had been issuing licenses to out-of-state couples to stop doing so because of the 1913 law. Four clerks who had been issuing licenses to out-of-state couples complied with Reilly's order, though some vowed to fight to have the law overturned.

At the heart of both lawsuits is a section of Massachusetts law that bans the Commonwealth from issuing licenses to out-of-state couples if their marriage would be illegal in their home state. The law states: "No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void."

Romney and Reilly have argued that, because gay marriage is not permitted in any other state, marriages contracted in Massachusetts by residents of the 49 other states are null and void. Romney's lawyers have said clerks can issue licenses if out-of-state couples say they intend to live in Massachusetts.

Lawyers for the municipalities, from the firm of Palmer & Dodge, will argue that the 1913 law is 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. ...

"Certainly, if the state has not enforced a law in the past, but is only beginning to enforce it now, that should arouse suspicion on behalf of the courts," said Andrew Koppelman, a professor of law and political science at Northwestern University School of Law. "If you have a general law on the books and only enforce it against a disfavored group, it has been well settled for over 100 years that that violates the equal protection clause of the 14th amendement . . . But they'd have to show that."

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