June 17, 2004
Injunction Sought Against Commonwealth for Discriminatory Enforcement of
1913 "Reverse Evasion" Law Denying Marriage Licenses to Out-of-State Couples
Two Lawsuits Seek Immediate Relief from Governor's Edict
On the one-month anniversary of the first marriage licenses granted
to gay and lesbian couples, two lawsuits were announced today challenging
the constitutionality and discriminatory enforcement under Massachusetts
Laws, Chapter 207 Section 11 (the 1913 Reverse Evasion statute). Section
11 is being used to prohibit clerks from issuing licenses to out-of-state
same-sex couples. Both suits seek declaratory and injunctive relief from
the cease and desist order issued by the Attorney General on May 21, and
charge that Section 11 is unconstitutional as applied to gay and lesbian
couples. The suits will be filed in Suffolk County Superior Court tomorrow.
One lawsuit represents 12 cities and towns, and the other, filed by GLAD,
represents eight out-of state couples. According to the legal action,
the state directive issued to clerks as well as the Attorney General's cease
and desist order are unenforceable because the law is invalid as to same-sex
couples and because it is being discriminatorily enforced against those couples.
"We believe that Section 11 violates both the liberty and equality provisions
of the Massachusetts Constitution," said Mary Bonauto, Civil Rights Director
of GLAD. "This was a law that clerks were instructed to ignore for
decades, yet the governor pulled it off the shelves just to deny marriage
to some gay and lesbian couples. Plainly stated, the Constitution trumps
Section 11 under the Goodridge decision."
In addition, the lawsuits charge that the 1913 law was passed in an era of
race discrimination to prohibit out-of-state interracial couples from coming
to the Commonwealth to marry, and is being used in the same manner today
against gay and lesbian couples.
“This 1913 law was enacted to prevent the state from becoming a haven for
interracial couples attempting to escape anti-miscegenation laws in their
home states,” said Randall Kennedy, professor Harvard Law School and the
author of Interracial Intimacies: Sex, Marriage, Identity and Adoption.
“That authorities today would seek to cabin the Supreme Judicial Court's
landmark Goodridge ruling by resuscitating a statute tainted by racism is
profoundly disturbing and regrettable.”
Somerville, Provincetown, Worcester, Cambridge, Plymouth, Acton, Burlington,
Marblehead, Nantucket, Sherborn, Northampton and Westford will file a complaint
seeking declaratory and injunctive relief against Attorney General Thomas
Reilly, the Commissioner of the Department of Public Health (DPH) and Stanley
E. Nyberg in his capacity as the Registrar of Vital Records and Statistics.
The cities and towns, with the exception of Provincetown, which is being
represented by Gretchen Van Ness, are being represented pro-bono by the ACLU
and Palmer & Dodge.
"For Somerville, this has always been a matter of fairness and decency for
Somerville,” said Mayor Joseph A. Curtatone. “We're asking the courts
to let us treat everyone the same, regardless of their sexual orientation.
What the Governor and the Attorney General are asking us to do is discriminatory,
plain and simple. "
"We have every expectation that this lawsuit will allow us to reopen our
doors to marriage for everyone," said Dr. Cheryl L. Andrews, Chair of the
Provincetown Board of Selectmen. "We believe the Governor has singled out
a group of people for discrimination and that's just wrong. We are
proud and honored to be part of an effort to ensure that Goodridge is fully
implemented, and the sooner the better."
At the same time, GLAD will file suit also seeking declaratory and injunctive
relief against DPH, the DPH Commissioner and the Registrar on behalf of eight
couples: Michael Thorne, 51, and James Therbege, 46, of Cape Elizabeth, Me.,
who are raising their two-year-old son Nate; Amy Zimmerman, 32, and Tanya
Wexler, 34, of New York City, who have three young children; Sandi and Bobbi
Cote-Whitacre, both 57, of Essex Junction, VT, who have been together since
their days in the Women's Army Corps in the late sixties; Katy, 41, and Kristin,
39, Gossman of Meriden, CT; Judi McNeil, 52, and Lee Beckwith, 41, of Providence,
RI, who as nurses, worry about being recognized as a couple should they face
a medical crisis; Les Schoof, 52 and Ed Butler, 55 innkeepers in Hart's Location,
NH, who face medical and retirement concerns without the protections of marriage;
Wendy Baker, 43, and Mary Norton, 44, of Providence, RI; and Mark Pearsall,
37, and Paul Trubey, 41, of Lebanon, CT, who were married in Worcester before
the AG issued his cease and desist order.
The couples represent a mix of experiences: some actually were married in
Somerville, Worcester and Provincetown, while the others were denied a marriage
application when they submitted the required documentation to a city or town
clerk. And one couple, Becker/Norton, filed their notice of intent
to marry, but were later told by Attleboro officials not to return for their
license.
“This law also fails because of the federal privileges and immunities clause
which prevents states from favoring residents over non-residents,” said Michelle
Granda, GLAD staff attorney.
Katy Gossman is an FBI agent who faced long and uncertain assignments in
the aftermath of 9/11. "I gladly and proudly put myself at risk for my country,"
she said. "But I don't understand why Kristin and I can't be treated equally
and have the same protections.”
Sandi and Bobbi Cote-Whitacre have concerns about maintaining their economic
security which also includes caring for Sandi's mother at home. Both
served in the military in Vietnam, but would be denied access to one another's
social security should one of them die. "And without that extra money,
I know we couldn't keep what we have," said Bobbi.
For more information on the case and for profiles of the eight plaintiff couples, go to www.glad.org/marriage.
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