Mass. court ruling leaves confusion for gay couples

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BOSTON (AP) – Christopher McCary and John Sullivan still consider themselves married, even if a ruling by Massachusetts’ highest court puts their union in legal limbo.

On Thursday, the Supreme Judicial Court, which three years ago made Massachusetts the first state to legalize gay marriage, upheld a 1913 state law that forbids nonresidents from marrying there if the marriage would not be recognized in their home state.

So in the eyes of the law, McCary and Sullivan are just two guys living in a house together in Alabama. That has them contemplating a move to Massachusetts, an idea considered even before their vows.

“We have been looking for real estate in Massachusetts,” said McCary, an attorney in Anniston, Ala. “I wonder if we moved there would our marriage be legal.”

Eight gay couples from surrounding states had challenged the law in a case watched closely across the country. Five of those eight couples actually received marriage licenses in Massachusetts before the governor ordered the 1913 law be enforced.

Justice Francis Spina wrote Massachusetts “has a significant interest in not meddling in matters in which another state, the one where a couple actually resides, has a paramount interest.”

The state “can reasonably believe that nonresident same-sex couples primarily are coming to this commonwealth to marry because they want to evade the marriage laws of their home states, and that Massachusetts should not be encouraging such evasion,” the ruling said.

The legality of the marriages of out-of-state couples who did get Massachusetts licenses would have to be determined in their home states on a case-by-case basis, according to Attorney General Tom Reilly, who said he agreed with the court’s decision.

The ruling left more uncertainty for Amy Zimmerman and Tanya Wexler, who are from New York. The court sent their case, and the case of a couple from Rhode Island, back to a lower court, saying it was unclear whether their home states prohibit same-sex marriage.

Michele Granda, an attorney for the couples, said couples from states where same-sex marriage isn’t explicitly prohibited can now argue their states wouldn’t prohibit their marriages in Massachusetts.

“The court identified two states where (same-sex) marriage is an option, but there may be more,” she said.

New York’s top officials have said same-sex marriage is illegal there, although that interpretation of state law is being challenged. The New York Court of Appeals is scheduled to hear arguments on the case on May 31. The law in Rhode Island is silent on whether such unions are permissible.

Massachusetts Gov. Mitt Romney applauded the ruling.

“We don’t want Massachusetts to become the Las Vegas of same-sex marriage,” Romney said. “It’s important that other states have the right to make their own determination of marriage and not follow the wrong course that our Supreme Judicial Court put us on.”

In oral arguments before the high court in October, a lawyer for the couples argued that the 1913 law had been unused for decades, until it was “dusted off” by Romney in an attempt to discriminate against same-sex couples. He ordered city and town clerks to enforce that law after the first same-sex marriages were performed in Massachusetts in May 2004.

Attorneys for the state argued that Massachusetts risked a backlash if it ignored the laws of other states by letting same-sex couples marry here when their own states prohibited such unions.

Massachusetts does not track how many out-of-state couples were given licenses. According to the Registry of Vital Records and Statistics, 7,341 gay couples tied the knot in Massachusetts between the first marriages in May 2004 and December 2005.

Kris Mineau of the Massachusetts Family Institute, which opposes gay marriage, said the ruling shows the need for a federal marriage amendment that would specifically ban gay marriage nationwide.

Massachusetts opponents of gay marriage are working to put a question on the state’s November 2008 ballot that would define marriage as only between a man and a woman.



AP reporter Jay Reeves contributed to this report from Birmingham, Ala.

AP-ES-03-31-06 0448EST

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