by Beth Robinson

      Provincetown merchants can brace for a new wave of newlyweds in the wake of a Massachusetts court decision that clears the way for same-sex couples from Rhode Island to legally marry in Massachusetts. The September 29 decision in Cote-Whitacre v. Department of Public Health represents a welcome step forward in the march for full civil rights for same-sex couples, after a summer of disappointing rulings.
      The Cote-Whitacre case, filed by Vermont's own Sandi and Bobbi Cote-Whitacre, and seven other same-sex couples from throughout New England, challenged Massachusetts' refusal to allow out-of-state samesex couples to marry. After the 2003 Massachusetts Supreme Court decision ordering that state to issue marriage licenses to same-sex couples, the State of Massachusetts invoked a long-dormant 1913 law to deny marriage licenses to gay and lesbian couples from other states. That 1913 law 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.
      In March of this year, the Massachusetts Supreme Court upheld the state's use of the 1913 statute. The court left the door open to plaintiffs from Rhode Island and New York to show in further proceedings at the trial court level that the 1913 statute doesn't apply to them because same-sex marriage is not "expressly prohibited" in their home states. The Court concluded that the other states in question do formally prohibit same-sex marriage.
      Back in the trial court, after analyzing Rhode Island law in great detail, Judge Thomas Connelly concluded in a September 29 opinion that Rhode Island law does not expressly prohibit same-sex marriage, and therefore the 1913 statute does not apply to gay and lesbian Rhode Islanders seeking to marry in Massachusetts. In the wake of the New York Court of Appeals' recent decision upholding that state's discriminatory marriage laws, the court concluded that gay New Yorkers were barred from marrying in Massachusetts. The Massachusetts Attorney General has announced that the state will not appeal the trial court's ruling, so the decision will stand, and gay and lesbian Rhode Islanders can start planning their nuptials.
      GLAD attorney Michele Granda, who represented the plaintiffs in Cote-Whitacre, celebrated the court's ruling, explaining, "Loving, committed Rhode Island couples can now affirm their relationships in the most public and respected way our society knows." Wendy Becker and Mary Norton, the Rhode Island plaintiffs in the case, were thrilled to have the option of marrying after 19 years together. They noted, "As the parents of two wonderful young children, our desire to marry has always been with them in mind. We want them to feel their family is as worthy as any other."
      So why wasn't Vermont included in the trial court proceedings? In its March decision in Cote-Whitacre, the Massachusetts Supreme Court wrongly concluded that Vermont, like several other New England states, expressly forbids same-sex marriage. Although Vermont does not issue marriage licenses to same-sex couples (neither does Rhode Island), Vermont law (like Rhode Island law) does not "expressly forbid" such marriages, or "explicitly deem [them] void," a legal distinction that's critically important with respect to this particular issue. Unfortunately, at least for now, the Massachusetts high court is the final authority on the application of the 1913 statute, so Vermonters seeking to follow Sandi and Bobbi Cote-Whitacre's footsteps to the Massachusetts altar have little recourse. Like the Cote-Whitacres, they can continue working here in Vermont toward the day when gay and lesbian Vermonters share all the rights of citizenship, including the freedom to marry, without having to leave the state they call home.

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