Massachusetts 1913 Law - Legal Challenges

Legal Challenges

Following the Supreme Judicial Court's decision in Goodridge v. Department of Public Health (2003), and the legalization of gay marriage in May 2004, the law was resurrected by state officials after several decades during which it had not been enforced. The intent in this second wave of enforcement was to ensure that same-sex couples who did not have an intention of living in Massachusetts once they were married were not issued marriage licenses by the Commonwealth's town and city clerks. Attorney General Tom Reilly would later include in a brief his position that enforcing the law was Massachusetts's way of respecting other states that have banned such marriages.

The renewed implementation of the law was almost immediately challenged by eight same-sex couples from outside Massachusetts and by 13 Massachusetts city and town clerks who argued that they were being turned into "agents of selective enforcement." The challengers argued that the law violates the equal protection provisions of the state's constitution and the United States Constitution. Massachusetts Superior Court Justice Carol Ball, ruled that the law was not unconstitutional, as it was being applied equally to all couples.

On March 30, 2006, the Supreme Judicial Court upheld the application of the law as it applies to marriages of same sex couples in a complex decision, Cote-Whitacre v. Department of Public Health, with three concurring decisions filed and one dissenting vote. The court sent the New York and Rhode Island couples' cases back to the superior court judge, asking the judge to determine whether same-sex marriage is expressly prohibited in those states. It denied the claims of the clerks and all the other couples.