Rhode Island Same-Sex Couples Now Can Marry In Massachusetts -- But Will Rhode Island Recognize Their Unions?

Since May 2004 -- thanks to a key ruling by Massachusetts' highest court, the Supreme Judicial Court (SJC) -- same-sex couples who reside in the state have been permitted to legally marry there. But no other state, as of yet, has permitted same-sex couples to marry within its borders - meaning that until now, same-sex marriage has been a privilege reserved for Massachusetts residents.

But not anymore. Last week a Massachusetts Superior Court held that same-sex couples residing in neighboring Rhode Island - but not those residing in any of the other 48 states -- can cross the state line and marry in Massachusetts as well.

The "Marriage Evasion" Law: A Barrier to Many Nonresidents

Previously, the state's marriage evasion law had been invoked - by Massachusetts Governor Mitt Romney - to prevent out-of-staters from marrying in Massachusetts. Though the law is archaic -- enacted in 1913 - Romney sought to apply it so that Massachusetts did not, in his words, become "the Las Vegas of same-sex marriage."

The marriage evasion law prohibits non-resident couples from marrying in Massachusetts but only if their home state would prohibit them from marrying. That leads to an important question: Which states actually do prohibit same-sex marriage?

Last spring, in Cote-Whitacre v. Department of Public Health, Massachusetts' highest court upheld the marriage evasion law - for reasons I discussed in a prior column. It also concluded that the plaintiff couples from Connecticut, Maine, New Hampshire, and Vermont could not marry in Massachusetts because their home states clearly prohibited same-sex marriage. (Vermont and Connecticut permit same-sex couples to enter into a marriage-like status, a civil union, but they both define civil marriage to be between a man and a woman.)

However, the SJC also gave plaintiff-couples from New York and Rhode Island the chance to prove to a Massachusetts superior court judge that their home states did not have any statute, constitutional amendment, or controlling judicial opinion banning same-sex marriage.

Cote-Whitacre v. Department of Public Health: The Case on Remand

In July of this year - before the Massachusetts Superior Court had a chance to rule on the matter -- New York's highest court ruled in Hernandez v. Robles that current New York state laws do not permit same-sex couples to marry, and that such a ban is not a violation of the state's constitutional guarantees of due process and equal protection. (I wrote about the reasons for that decision in a previous column.) Both the New York couple and the State of Massachusetts had agreed that the New York ruling would govern, and the Massachusetts judge held that it did.

With respect to Rhode Island law, the court's task was a bit more involved. A concurring opinion in Cote-Whitacre concluded that Rhode Island couples could marry in Massachusetts unless "same-sex marriage is explicitly deemed void or otherwise expressly forbidden by a Rhode Island constitutional amendment, by a Rhode Island statute, or by a Rhode Island Supreme Court decision." Although other justices would have undertaken a broader inquiry into Rhode Island law, looking for more subtle "prohibitions on same-sex marriage such as the common law definition of marriage, the narrowest holding in a splintered opinion controls.

Applying the narrower test, the court found that same-sex marriage is not "expressly deemed void or otherwise expressly forbidden" in Rhode Island. And no wonder: Rhode Island is one of only four states other than Massachusetts without any state statute, constitutional amendment, or opinion from the state's highest court expressly banning same-sex marriage. (New Jersey, New Mexico, and Wisconsin are the other three; the highest court in New Jersey is poised to rule on same-sex marriage any day now.)

The Massachusetts Attorney General has said he will not appeal the Superior Court's ruling, though news reports say Governor Romney is urging him to reconsider.

The Rights of the Rhode Island Couple: Marriage Recognition Outside Massachusetts

What's more important, perhaps, than what Rhode Island couples gained through this ruling is what they did not gain with this ruling.

The plaintiff Rhode Island couple can now marry in Massachusetts. But then what?

If the Rhode Island couple wishes to stay in Massachusetts, their union will be valid and binding in that state (though not for any federal purpose, such as income taxes). But if they had been planning to move to Massachusetts anyway, they could have gotten married much more easily - and without a lawsuit. After all, one can be a resident simply by intending to reside in a state, so once they had that intention, they were Massachusetts residents and thus able to enter into same-sex marriages.

What if the Rhode Island couple wants to return to Rhode Island and have their marriage recognized? Rhode Island Attorney General, Patrick Lynch has observed correctly that "[o]nly the Rhode Island legislature or a Rhode Island court can decide if same-sex marriage is valid in Rhode Island." Yet the state is, thus far, conspicuously silent on the issue. For this reason, the state of the Rhode Island couple's Massachusetts marriage, in Rhode Island, is unclear - but, as I'll discuss below, may be clarified sooner rather than later.

What if the couple wants to reside elsewhere someday? At least for now, they are probably out of luck: Again, almost all other states have enacted a statute or constitutional amendment explicitly refusing to recognize out-of-state same-sex marriages.

Will Rhode Island Extend Comity To Massachusetts Marriages? History Offers a Parallel

It's very likely that soon, some same-sex Massachusetts couple - perhaps the very couple in the recent SJC case - will sue to have their marriage recognized in Rhode Island. Will they win?

It's important to stress that the couple could win even if Rhode Island does not itself decide to legalize the performance of same-sex marriages. Traditionally, states honored marriages performed in other states, as long as they didn't violate a strong public policy of the state asked to extend recognition to the marriage.

Is there a strong anti-same-sex marriage policy in Rhode Island? It's hard to claim there is, given the lack of any positive law banning same-sex marriage or any overt public policy against it.

This is far from the first conflict in American history between Massachusetts and Rhode Island marriage laws. These conflicts are age-old, and traditionally, courts have resolved them in favor of tolerance of the other state's differing marital practices.

For example, in a famous 1819 case, Medway v. Needham, the highest court of Massachusetts upheld the validity of an interracial Rhode Island marriage between residents Massachusetts residents. (The validity of the marriage was at issue because it would determine which of the two jurisdictions would be responsible for the support of the pauper couple.)

Massachusetts itself had an anti-"miscegenation" law, which not only prohibited whites from marrying blacks, but also expressly declared such marriages to be void. But Rhode Island did not. Massachusetts' Chief Justice nevertheless upheld the interracial marriage, on the theory that "it is a principle adopted for general convenience and security, that a marriage, which is good according to the laws of the country where it is entered into, shall be valid in any other country."

Rhode Island would do well now to return the favor, and allow Massachusetts couples' marriages recognition in Rhode Island. Soon, we will learn whether the spirit of comity is as alive now in Rhode Island, as it was in Massachusetts so many years ago.