E-Mail This Article to a Friend THAT 1913 STATUTE Gay-marriage challenges solid BY KRISTEN LOMBARDI

Last week, the long-anticipated legal battle over a 1913 state statute prohibiting nonresident gay couples from marrying in Massachusetts (see "State of Matrimony," News and Features, June 11) commenced. On June 18, two lawsuits challenging the "1913 Reverse Evasion Statute" — which forbids nonresident couples from marrying here if "such marriage[s] would be void" in their home states — were filed in Suffolk Superior Court.

Eight same-sex couples from across New England filed the first action last Friday. They are represented by the Gay and Lesbian Advocates and Defenders (GLAD), in Boston, which litigated the Goodridge case resulting in gay civil marriage last November. Some of the plaintiffs received marriage licenses in this state, while others were refused because they do not intend to move here.

The second lawsuit involves clerks from 12 cities and towns, including Provincetown, Somerville, and Worcester, who are asking the court to dismiss a cease-and-desist order issued by Attorney General Tom Reilly. The May 21 order prevents the clerks from granting marriage licenses to nonresident same-sex couples.

The two cases effectively claim the same thing: both the couples and the clerks argue that the Commonwealth has failed to enforce the 1913 statute in the past, and that it has resurrected the statute solely to discriminate against gay men and lesbians. In addition, the couples argue, the statute is unconstitutional in light of the November 2003 Goodridge decision because the Supreme Judicial Court (SJC) has ruled the state cannot deny marriage licenses to all gay men and lesbians.

So do these arguments have any merit? If the general consensus among legal observers is any indication, as Boston College law professor Charles Baron puts it, "The plaintiffs are right. Absolutely."

On the face of it, observers say, a strong argument can be made that the Romney administration is applying the 1913 statute in a discriminatory way. For one thing, the statute — originally enacted to bar out-of-state interracial couples from marrying in Massachusetts — has never been enforced in its 91-year history, even though it could have been used against heterosexual couples. Only after same-sex couples could tie the knot did the Romney administration dust off the 1913 statute and put it to use.

That action, explains Renée Landers, the Boston Bar Association president, "gives rise to the conclusion that the reason the law is suddenly being enforced is in order to discriminate against people who aren’t favored."

Last May, just before the Goodridge ruling took effect, the administration compiled a state-by-state list of "legal impediments" to marriage, including age, residency, and non-consanguinity requirements; all nonresident couples, both same-sex and straight, who are applying for marriage licenses must now affirm that their union does not run afoul of their home state’s laws. Presumably, notes Harvard Law School professor Lawrence Friedman, the administration could cite this list to show that it is not using the 1913 statute as a way to single out same-sex couples. But, Friedman says, "the Commonwealth did not care about any of those [out-of-state] requirements until the possibility of same-sex marriage was made real on May 17," thus indicating that the motivation for enforcing the statute comes down to discrimination.

Of course, the Romney administration is expected to defend its interpretation of the 1913 statute, and defend it vigorously. To this end, the Attorney General’s Office has to explain not only why the Commonwealth just recently began enforcing the statute, but also why it has a "rational reason" for doing so. Reilly’s office could claim that the legal offices of the state of Massachusetts should be reserved for its citizens, experts say, although the attorney general would still have to justify the statute’s adverse effect on only one population group.

As it stands, it’s anyone’s guess how long it will take to resolve these lawsuits. Legal observers expect the two pending cases to wend their way through the judicial system and eventually reach the SJC. Given the importance of the 1913 question, it’s all but certain that the SJC will hear the matter. And if it does, as Boston College family-law professor Sanford Katz observes, "the court could in its wisdom reaffirm its [Goodridge] decision by saying, ‘Listen, we meant this broad interpretation’" that all gay men and lesbians can marry in this state.