Determined whether it is a violation of equal protection to apply a hundred-year-old Massachusetts law that denies marriage to persons who could not legally marry in their home state to same sex couples seeking to marry in Massachusetts.
When the Massachusetts Supreme Judicial Court ruled in 2003 that the state could not bar same-sex couples from marrying, 440 Mass. 309 (2003), and in 2004 that a lesser "civil union" status for same-sex couples would not satisfy the requirements of the Massachusetts Constitution, 440 Mass. 1201 (2004), Massachusetts Governor Mitt Romney urged the state legislature to pass a state constitutional amendment banning same-sex marriages. He also resurrected an unenforced 1913 statute that prohibits town clerks from distributing marriage licenses to out-of-state couples whose marriage would not be valid in their home state in order to limit the number of same-sex couples married in Massachusetts. In a related case, thirteen Massachusetts town clerks alleged that as a result of the revival of the 1913 law, they had to turn away 96 non-resident same-sex couples--but no opposite-sex couples--who applied for marriage licenses in the previous month.
In Cote-Whitacre v. Department of Public Health, Legal Momentum supported an amicus curiae brief in a case brought by eight same-sex non-resident couples who were denied the opportunity to marry in Massachusetts because of the 1913 law. We argued that the state's enforcement of the 1913 law violates the Massachusetts constitution's promise of equal protection under the law, both through intentional discrimination--shown though Romney's many blatant public declarations--and because of the obvious disparate impact this enforcement has on same-sex couples. The court, however, denied the plaintiffs' motion for a preliminary injunction, holding that their case was unlikely to succeed because the law applied equally to same-sex and opposite-sex couples seeking to marry.