Mar 05, 2004  |  By: JOE CREA  | COMMENTS     

BOSTON — Once the state of Massachusetts begins issuing marriage licenses to gay couples in May, same-sex couples from other states are expected to flock to the Bay State, get married, and then return to their home states to demand that their marriage be recognized. But an obscure 1913 law may prevent non-Massachusetts gay couples from marrying.

Known as the “reverse evasion” law, the statute bans the state of Massachusetts from granting marriage licenses to out-of-state residents who cannot legally marry in their home states.

Listed as Section 11 of the Massachusetts marriage statute, 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.”

Gay marriage is not recognized in any other state and is outright prohibited in 38 states that have adopted Defense of Marriage Acts. Should the 1913 statute be declared valid, it could be used to prohibit Massachusetts officials from issuing marriage licenses to out-of-state gay couples come May 17, a date set by the Massachusetts Supreme Judicial Court in the landmark marriage ruling last November in Goodridge vs. Dept. of Public Health.

No marriage license for out-of-state couples?
Gary Todd, chair of the Boston Bar Association and a partner at the law firm of Todd & Weld, said his analysis of the law is that out-of-state gay couples must attest that they are, in fact, Massachusetts residents before receiving a marriage license.

“People keep saying, ‘I’m so nervous, gays are going to come in droves to Massachusetts.’ Well, they may come in droves, but licenses may not be issued unless the couples meet all the marriage requirements for Massachusetts,” Todd said. “Goodridge said you can’t discriminate against same-sex couples. But if homosexuals and heterosexuals have the same residency requirement, they wouldn’t be discriminated against.”

Lisa Cukier, the past-co-chair of the Massachusetts Gay & Lesbian Bar Association and president-elect of the Massachusetts Probate & Family Inn of Court, said that if a couple’s home state would find the marriage void, then gay couples from another state will likely be prevented from having their marriage contracted in Massachusetts.

But some question the merits of the 1913 law.

Charles Baron, a Boston College law professor, says the 1913 reverse evasion statute could come under federal scrutiny based on the privileges and immunities clause of Article IV, Section II of the U.S. Constitution.

“This one says that citizens of each state should be entitled to all privileges and immunities of each state,” Baron said. “If I’m from Ohio, I can’t be discriminated against in Massachusetts. They would have to give me all the privileges and immunities that it gives its own citizens.”

This “comity” clause, Baron says, is based on comity in international law that basically says Country A must extend all of the privileges and immunities to Country B.

But Baron said that the Supreme Court has ruled in the past that this clause only applies with respect to “fundamental rights.”

“Whether or not marriage is a fundamental right will have to be legally decided at some point, but there are certain things the state can discriminate against,” Baron said. “For example, it’s OK for a state not to allow citizens of other states to be able to get a license to fish for say, oysters, or set their own tuition at state schools.”

Activists challenge 1913 law
Michele Granda, a staff attorney at Gay & Lesbian Advocates & Defenders, said that historically, no legal cases have interpreted the reverse evasion statute. She added that in light of Goodridge, strong legal and constitutional arguments now exist that could possibly override the 1913 statute.

“Why would they rely on the discrimination of other states?” Granda asked. “Massachusetts [Goodridge] took a look at this and said the only rational reason for a marriage ban is discrimination unto itself. Massachusetts has to have a justification for this law to take over public policy in light of Goodridge that says they cannot abide by discrimination.”

Granda said that since cities and towns issue marriage licenses, they may exercise their own judgment to follow the law ...