Cote-Whitacre v. Dep't. of Public Health  Questions & Answers

Gay & Lesbian Advocates & Defenders (GLAD) represents the plaintiffs in Cote-Whitacre et al v. Department of Public Health.  The case seeks to end yet another version of marriage discrimination against same-sex couples by the Executive branch of the Massachusetts government:  the denial of marriage to gay and lesbian non-residents.  In Goodridge et al v. Department of Public Health, the state’s highest court ruled that denying marriage to gay and lesbian couples violates the equality and liberty guarantees of the state Constitution.  Because the government is continuing to deny certain eligible same-sex couples the right to marry, GLAD is going back to court.

What is the lawsuit about?

The case is about ending the latest effort by the executive branch of the Massachusetts government to deny marriage rights to committed and loving gay and lesbian couples.  The Governor is relying upon a law dating from 1913, known as General Laws Chapter 207, section 11, to say that same-sex couples from other states may not marry in Massachusetts. But the Goodridge case, based on the Massachusetts constitutional guarantees of liberty and equality, said state bans on marriage for gay people are void, and that the state cannot deny same-sex couples from marrying in Massachusetts simply because they are same-sex couples.  GLAD’s constitutional arguments are that:

• The Goodridge ruling trumps any other law, including the 1913 law seized on by the Governor to deny marriage rights yet again.  
• The “1913 law” has been moribund for decades and is being revived by the executive branch for the sole purpose of discriminating against gay and lesbian couples. 
• The ban on non-residents marrying violates federal constitutional guarantees saying that states may not treat their residents more favorably than non-residents. 

The plaintiffs, eight lesbian and gay couples from all the New England states and New York, are seeking to end the government’s denial of marriage to gay and lesbian non-residents.  They asked the court for a declaration that they have a right to marry under Massachusetts law, in keeping with the Goodridge decision.

Why is the suit against the Department of Public Health?

The defendant is the Department of Public Health (DPH) because DPH is charged under Massachusetts law with enforcing state laws that pertain to marriage.

Who are the plaintiffs?

The couples have been in committed relationships from five to thirty-six years.  All eight couples seek civil marriage and the protections and security it uniquely provides. Some have had problems with hospital visitation and medical decision-making during times of crisis; others need the legal safety net marriage provides at retirement; and three of the eight couples want their own children to grow up in a world where their family is not second-class.  Half of them have deep connections to Massachusetts.

Five of the couples married in Massachusetts during the week of May 17. They then had their licenses “pulled” by the Governor, who announced that he considered the marriages void because they are not Massachusetts residents and would instruct the state not to record their marriages.  Three other couples were denied licenses:  two by Somerville after the City was ordered by the Attorney General (AG) to stop issuing licenses, and one who was stopped in the middle of the process in Attleboro after it, too, changed its policy on non-residents because of the AG.

Why is this suit being filed at this time?

GLAD is filing this lawsuit on an emergency basis because it is utterly indefensible in Massachusetts to deny marriage rights to committed gay and lesbian couples who are already responsibly caring for one another, and sometimes caring for children (and elderly parents).  These couples have waited for years to take on this legal commitment and need the bread and butter protections marriage provides for their families now.  Massachusetts may not erect a fence of anti-gay discrimination around the state to wall out only gay and lesbian non-residents. 

Why should same-sex couples be allowed to marry in Massachusetts if they can’t marry in their home state?

This case involves Massachusetts laws; not the law of other states.  The state Constitution guarantees the right of same-sex couples to marry and public officials in Massachusetts have to treat everyone equally – resident or non-resident.  How the marriages of same-sex couples from other states are treated at home is a separate matter. We expect that such marriages will receive a surprising amount of respect and some disrespect, but if an issue arises, it will be sorted out by the common sense notion of respect for marriages,  as well as by each state’s own laws (discriminatory or not) and overarching constitutional guarantees.

What about where the home state has explicit public policy against equal marriage for same-sex couples (either prohibiting marriage or denying recognition to marriages from other states), as is the case in New Hampshire or Maine?

Couples from Maine and New Hampshire are part of this case because those couples sought to marry but were denied marriage by the state.  Those states’ laws are not at issue here. The Massachusetts state Constitution guarantees equal protection regardless of other states’ discriminatory laws. This suit is focused on the correct application of Massachusetts laws and Constitutional requirements.

What is the status of the marriages contracted in Massachusetts by same-sex couples from other places?

We believe such marriages are valid and this lawsuit seeks to remove any cloud that the Governor is trying to place on them by calling them “void,” and threatening that the state will not record their marriages.

What is the law that Governor Romney is using to say same-sex couples from outside Massachusetts should not be able to marry in the Commonwealth?

Massachusetts General laws 207, Section 11, provides that a couple may not marry in Massachusetts if their marriage would be “void if contracted” in their home state. According to a separate action filed by 12 municipal clerks, the law has not been enforced for decades and is now being used to discriminate against gay and lesbian couples.  They also note that the executive branch has misinterpreted the law and even if by some chance it survives the Goodridge decision, it is being applied too broadly.  It is also suspect because of its origins in racial prejudice.  The law was created for the express purpose of giving effect to other states’ prohibitory marriage laws, including those barring interracial marriage. 

What do you want to see happen?

The couples seek a declaration that the 1913 law is unconstitutional as it is applied to prohibit same-sex couples from marrying. In light of the Goodridge decision and the equality and liberty provisions of the Massachusetts Constitution, all same-sex couples who meet the requirements for marriage in the Commonwealth should be able to marry.