by Beth Robinson

      BOSTON - While upholding the right of gay and lesbian Massachusetts couples to marry, the Massachusetts Supreme Court in late March authorized the state to discriminate against non-resident same-sex couples.
      The Massachusetts court's decision came in the case of Cote Whitacre v. Department of Health, and concerned a 1913 Massachusetts law that said that a Massachusetts clerk should not issue a marriage license to nonresidents who are prohibited from marrying by the laws of their own state.
      After the Massachusetts Supreme Court ruled in 2003 that that state could not constitutionally deny marriage licenses to same-sex couples, the State of Massachusetts invoked the long-dormant 1913 law to deny marriage licenses to gay and lesbian couples from other states.
      In the March 30 decision, the court concluded that the state's actions were not unconstitutional.
       The court left the door open to plaintiffs from Rhode Island and New York to show in further proceedings that they are not actually prohibited from marrying in their home states, but allowed the state to deny marriage licenses to same-sex couples from the other New England states, including Vermont. The court did not back away from its 2003 decision in Goodridge v. Department of Health, and gay and lesbian Massachusetts couples still have a constitutionally- protected right to marry.
      Nor does the Cote-Whitacre decision automatically invalidate marriage licenses that were previously issued to non-resident same-sex couples.
      Vermonter Sandi Cote-Whitacre, one of the named plaintiffs in the case, acknowledged her disappointment, but expressed renewed commitment to the cause. "We know how important it was to us to get that marriage license. Our work won't be over until gay and lesbian citizens right here in Vermont and throughout the country have the same opportunity," she said.
      Vermont Freedom to Marry Task Force Field Director Robyn Maguire agreed and noted, "The court didn't back away from equal rights for gay Massachusetts residents, but left the door open for other states to discriminate against their own citizens. Vermont should reject the court's invitation."
      A bill to eliminate the discrimination in Vermont's marriage laws (H.742) is pending in the Vermont legislature.

Beth Robinson was co-counsel
to the plaintiffs in "Baker
v. State" and is chair of the
Vermont Freedom to Marry
Task Force.