MASS. LAW THAT CURRENTLY RESTRICTS SSM TO IN-STATE COUPLES IN COURT TODAY: From the Associated Press

A 1913 Massachusetts law being used to prevent out-of-state gays from getting married here is discriminatory and should be struck down, a lawyer for eight same-sex couples told a judge Tuesday.

Attorney Michele Granda asked Superior Court Judge Carol Ball to block the state from enforcing the 91-year-old law, which prohibits marriages that would be illegal in a couple's home state. She said the statute violates both the U.S. Constitution and Massachusetts law.

"We're asking the court to tear down the fence of discrimination that's been erected around (the state's) borders," she said.

But an attorney for the state countered that the law protects other states' right to define marriage as they see fit, a principle repeatedly cited by the Massachusetts high court in its landmark November ruling legalizing gay marriage.

Assistant Attorney General Peter Sacks said that ruling defines marriage as "two willing spouses and an approving state." Since no other state allows gay marriages, that standard is not met anywhere but Massachusetts, he said.

Judge Ball did not indicate when she would rule on the request to block enforcement of the 1913 law. She gave plaintiffs until July 23 to file additional briefs, and the state until Aug. 2 to respond.

However, Ball did say in court, "From what I've read so far, it appears the state is applying the law in a procedurally non-discriminatory manner." ...

Legal experts have said the law was passed to prevent interracial couples from getting married. But the attorney general has said there is no evidence that lawmakers were motivated by race in passing the law.

At any rate, the law was ignored for decades before the high court cleared the way for the nation's first state-sanctioned gay weddings to begin this spring, Granda said.

"The commonwealth is clearly over-enforcing the statute," she said.

Sacks did not dispute that assertion. "Certainly enforcement has been increased because there's much more reason than there was before to expect violations," he said. ...

The eight couples who filed the lawsuit are all from states bordering Massachusetts -- two from Connecticut, two from Rhode Island, and one each from New Hampshire, Vermont, Maine and New York.

Five of the couples were married in Massachusetts by clerks who ignored the 1913 law, while the three others were turned away when they tried to get marriage licenses.

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posted by Eve at 7:57 PM VOTE

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