Massachusetts law called discriminatory

BOSTON – A 1913 Massachusetts law that is being used to prevent out-of-state gays from getting married here is discriminatory and should be struck down, a lawyer for eight same-sex couples told a judge Tuesday.

Attorney Michele Granda asked Superior Court Judge Carol Ball to block the state from enforcing the 91-year-old law, which prohibits marriages that would be illegal in a couple’s home state. She said the statute violates both the U.S. Constitution and Massachusetts law.

“We’re asking the court to tear down the fence of discrimination that’s been erected around (the state’s) borders,” she said.

But an attorney for the state countered that the law protects other states’ right to define marriage as they see fit, a principle repeatedly cited by the Massachusetts high court in its landmark November ruling legalizing gay marriage.

Assistant Attorney General Peter Sacks said that ruling defines marriage as “two willing spouses and an approving state.” Since no other state allows gay marriages, that standard is not met anywhere but Massachusetts, he said.

Republican Gov. Mitt Romney, a gay marriage opponent, has invoked the 1913 law to bar gay couples from other states from getting married here.

When gay marriages began on May 17, some municipal clerks openly defied Romney and issued licenses to anyone who applied. But Massachusetts’ attorney general, acting on Romney’s instructions, ordered them to stop.

Legal experts have said the law was passed to prevent interracial couples from getting married. But the attorney general has said there is no evidence that lawmakers were motivated by race in passing the law.

It was not immediately clear when the judge would rule.

The eight couples who filed the lawsuit are all from states bordering Massachusetts – two from Connecticut, two from Rhode Island, and one each from New Hampshire, Vermont, Maine and New York.

Five of the couples were married in Massachusetts by clerks who ignored the 1913 law, while the three others were turned away when they tried to get marriage licenses.