BOSTON – When Massachusetts became the first state to issue marriage licenses to gay couples in 2004, it left one big roadblock in place: Out-of-state couples need not apply.
Now an effort is gaining momentum to repeal a 1913 state law that has prevented out-of-state gay couples from getting married. The law says couples cannot be married in Massachusetts if their unions would be illegal in their home states.
The Democratic leaders of the state House and Senate and Gov. Deval Patrick support a repeal, which could come up for a vote as early as Tuesday in the Senate and could reach the governor's desk by the end of week.
Former Gov. Mitt Romney, who invoked the nearly forgotten law after gay marriage went into effect in 2004, once warned that repealing the law would make Massachusetts the "Las Vegas of gay marriage."
But California's embrace of same-sex marriage — coupled with the Massachusetts' election of Patrick, a pro-gay-marriage Democrat — has breathed new life into the repeal drive. California, where a state Supreme Court ruling made same-sex marriage legal in May, has no residency requirement for marriage.
Marc Solomon, executive director of MassEquality, said he's confident the repeal bill will reach Patrick's desk before the end of the formal session July 31. Otherwise the legislative process probably would have to start from scratch next year.
"There's strong support in the Legislature for eliminating this last vestige of state discrimination in the marriage laws against same-sex couples," Solomon said.
Solomon also said there's no reason Massachusetts shouldn't reap some of the economic benefits California is enjoying from out-of-state gay couples getting married.
About 11,000 same-sex couples have tied the knot in Massachusetts, but a new analysis released by the state Office of Housing and Economic Development estimates that more than 30,000 out-of-state gay couples — most of them from New York — would wed in Massachusetts over three years if the 1913 law were repealed. That would boost the state's economy by $111 million and create 330 jobs, it estimated.
Kris Mineau, president of the Massachusetts Family Institute, which opposes same-sex marriage, said the 1913 law is in sync with federal constitutional protections guaranteeing individual states the right to define marriage.
"It is an issue of one state honoring the rights of other states," he said, though he conceded the California ruling was a setback.
"The green light has been given to try to export this radical social experiment from coast to coast," Mineau said.
Most states, however, deny recognition to same-sex unions with statutes or constitutional amendments specifying that marriage is between a man and a woman. The federal government also doesn't recognize such unions, so even if the 1913 law is repealed, it's unclear how much weight marriage certificates granted to out-of-staters would have.
Some gay activists are cautioning couples from immediately filing lawsuits challenging their home state's bans on gay marriage. Activists fear the rush could set court precedents against gay marriage that could take years to undo.
Patrick, who last year helped quash a proposed ballot question that would have reinstated Massachusetts' ban on gay marriage, said the 1913 law has "outlived its usefulness."
"It seems to have derived at a time when lawful discrimination based on race was at large here in the commonwealth and elsewhere," said Patrick, the state's first black governor.
The genesis of the law remains murky. It was approved at a time when many states barred interracial marriages, although supporters say there's no evidence it was racially motivated in Massachusetts, which began allowing interracial marriages in 1843.
There's no record of the legislative debate on the bill, which raced through the Massachusetts Legislature in three weeks and was quickly signed into law.
It appeared to come out of a nationwide effort to eliminate conflicts among the country's patchwork of laws. But it also came during a time of racial tension, including a scandal over black heavyweight boxer Jack Johnson's marriage to Lucille Cameron, who was white.
The law was rarely enforced until Massachusetts' Supreme Judicial Court ruled in 2003 that the state could no longer bar gay couples from marrying.
Romney, then eyeing a run for president, ordered city and town clerks to enforce the statute, although some town clerks balked.
Eight gay couples from surrounding states challenged the law in court, and in 2006 the same court that allowed gay marriage refused to toss out the 1913 law.
Until the California ruling, gay marriage remained an option available almost exclusively to same-sex couples living in Massachusetts.
In 2006, a Massachusetts judge ruled there was nothing in Rhode Island law banning same-sex marriage, even though the Rhode Island Legislature hasn't legalized it. Nearly 100 gay couples from Rhode Island have crossed the state line to marry.
This year in New York, Gov. David Paterson stipulated that state law requires recognition of legal marriages performed elsewhere, including same-sex unions.