Cote-Whitacre v. Department of Public Health, No. 04-2656 (Mass.Super 9/29/2006)
| Decision Date | 29 September 2006 |
| Docket Number | No. 04-2656,04-2656 |
| Parties | SANDRA COTE-WHITACRE & others<SMALL><SUP>1</SUP></SMALL> <U>vs.</U> DEPARTMENT OF PUBLIC HEALTH & others<SMALL><SUP>2</SUP></SMALL> |
| Court | Massachusetts Superior Court |
This matter is currently before the court on order from the Supreme Judicial Court of Massachusetts for a determination of whether same-sex marriage is prohibited in New York and Rhode Island. Cote-Whitacre v. Dep't of Pub. Health, 446 Mass. 350, 352 (2006) (rescript). For the following reasons, this Court determines that same-sex marriage is prohibited in New York and is not prohibited in Rhode Island.
The factual and procedural background is more fully set forth in Cote-Whitacre, 446 Mass. at 352-357 (Spina, J., concurring). In sum, however, eight same-sex couples desired to marry in Massachusetts following the Supreme Judicial Court's decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003). The couples, who resided in Connecticut, Maine, New Hampshire, New York, Rhode Island, and Vermont, indicated on their Notices of Intention of Marriage that they intended to continue to reside outside Massachusetts after marrying. Three couples were refused Certificates of Intention of Marriage (commonly known as marriage licenses). Five couples, who received marriage licenses and had their marriages solemnized, were prevented from having their marriages registered in the Commonwealth.
In June 2004, the couples filed an action in Suffolk County challenging the application and construction of the statutes cited as authority for preventing non-resident same-sex couples from marrying in Massachusetts. The couples then filed a motion for a preliminary injunction seeking a declaratory judgment that G. L. c. 207, § 11, was unconstitutional as applied to non-resident same-sex couples, a preliminary order enjoining enforcement of section 11 with respect to non-resident same-sex couples, and a preliminary order requiring the processing and indexing of non-resident same-sex couples' marriage applications. Finding that the couples had failed to demonstrate a likelihood of success on the merits, a Superior Court Judge denied the motion. Cote-Whitacre v. Dep't of Pub. Health, Civil No. 2004-2656, 2004 WL 2075557, at *6 (Mass. Super. Ct. Aug. 18, 2004) (Ball, J.)
After granting direct appellate review, the Supreme Judicial Court affirmed the denial of the motion for preliminary injunction. Cote-Whitacre, 446 Mass. at 352 (rescript). In addition, the court ordered that judgment enter in the Superior Court for the defendants as to the Connecticut, Maine, New Hampshire, and Vermont plaintiffs. Id. The court also ordered that the cases of the New York and Rhode Island plaintiffs proceed in the Superior Court "for a determination whether same-sex marriage is prohibited in those States." Id.
With this Court's approval, the New York plaintiffs and the defendants jointly proposed that the question of whether same-sex marriage is prohibited in New York would be determined in accordance with the resolution of the then-pending cases on that question in the New York Court of Appeals. The Rhode Island plaintiffs and the defendants submitted memoranda to this Court regarding whether same-sex marriage is prohibited in Rhode Island.3 On June 26, 2006, this Court heard oral argument from the Rhode Island plaintiffs and the defendants and took the matter under advisement.
In July, the New York Court of Appeals decided the pending cases challenging the constitutionality of that State's limitation of marriage to opposite-sex couples. The court affirmed the Appellate Division orders in each of the cases and held that New York's "Domestic Relations Law's limitation of marriage to opposite-sex couples is not unconstitutional." Hernandez v. Robles, 2006 N.Y. Slip Op. 05239, at *10, 2006 WL 1835429 (N.Y. July 6, 2006). Accordingly, this Court determines that same-sex marriage is prohibited in New York.
The resolution of the question propounded by the Supreme Judicial Court in Cote-Whitacre as it applies to Rhode Island requires some discussion of that decision. The Cote-Whitacre decision consists of five different opinions: a rescript, Cote-Whitacre, 446 Mass. at 352 (rescript); a concurrence, id. at 352 (Spina, J., concurring, with whom Cowin and Sosman, JJ., join); a second concurrence, id. at 382 (Marshall, C.J., concurring, with whom Cordy, J., joins, and Greaney, J., joins in part); a third concurrence, id. at 393 (Greaney, J., concurring); and a dissent, id. at 395 (Ireland, J., dissenting). The rescript represents an agreement by a majority of the justices that the cases of the New York and Rhode Island plaintiffs should proceed in this Court for a determination of whether same-sex marriage is prohibited in those States. Id. at 352 (rescript). The court's decision and order to this Court in that respect is clear. However, as none of the concurring opinions garnered a majority of justices, "[t]here is some difficulty in determining the binding rule of law" that this Court must follow in carrying out the court's order. Globe Newspaper Co. v. Super. Ct., 383 Mass. 838, 843 n.8 (1981), rev'd on other grounds, 457 U.S. 596 (1982).
The separate concurrences of the court evenly divide in construing G. L. c. 207, §§ 11 and 12.4 Three justices, in the concurring opinion authored by Justice Spina, construe sections 11 and 12 to preclude a non-resident same-sex couple from marrying in Massachusetts where such marriage in the couple's state of domicile is "expressly deemed `void,' or because it is prohibited by constitutional amendment, by the common law, or by State statutory language to the effect that such marriage is not permitted, not recognized, not valid, or the like." Cote-Whitacre, 446 Mass. at 363 (Spina, J., concurring). Furthermore, in the absence of existing appellate court decisions on the matter, Justice Spina views it as "necessary to look at the home State's general body of common law and ascertain whether that common law has interpreted the term `marriage' as the legal union of one man and one woman as husband and wife." Id. at 363 n.12. In contrast, three justices, in the concurring opinion authored by Chief Justice Marshall, construe sections 11 and 12 more narrowly. Id. at 387-388 (Marshall, C.J., concurring).5 Under Chief Justice Marshall's construction, section 11 bars marriages "where the relevant statutory language of the applicant's home State explicitly provides that particular marriages are void," id. (quotations omitted), and section 12 prohibits marriages that are "expressly forbidden by another State's positive law — that is, by constitutional amendment, statute, or controlling appellate decision," id. at 384-385. The court thus does not present a majority opinion as to the rule of law to be applied in determining whether same-sex marriage is prohibited in another state.
In Marks v. United States, the Supreme Court ruled that when a divided Court provides no majority rationale for its decision, "`the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .'" 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, & Stevens, JJ.)); McClure v. Sec'y of the Commonwealth, 436 Mass. 614, 626 n.15 (2002).6 On the issue of statutory construction, Chief Justice Marshall's concurring opinion in Cote-Whitacre articulates the narrowest grounds for the judgment of the court. 446 Mass. at 387-388 (Marshall, C.J., concurring); see also id. at 397 n.3 (Ireland, J., dissenting) (). Chief Justice Marshall construes G. L. c. 207, § 12, to prohibit marriages that are "expressly forbidden by . . . constitutional amendment, statute, or controlling appellate decision." Id. at 384-385 (Marshall, C.J., concurring). Justice Spina differs from Chief Justice Marshall only to the extent that he would construe section 12 more broadly in the absence of a controlling appellate court decision. Id. at 363 n.12 (Spina, J., concurring). In essence, therefore, the "common denominator" of the court's reasoning that embodies a "position implicitly approved" by a majority is that section 12 prohibits marriages expressly forbidden by another state's positive law. See King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (); cf. United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (). Chief Justice Marshall's statutory construction, as the position of the court concurring in the judgment on the narrowest grounds, thus represents the holding of the court on that issue.
In addition, Chief Justice Marshall's strict construction of G. L. c. 207, §§ 11 and 12, more closely adheres to the rules of statutory construction. "It is . . . well settled that a statute in derogation of the common law should be strictly construed, so long as the construction is consistent with the statutory purpose." Globe Newspaper Co. v. Super. Ct., 379 Mass. 846, 853 (1980), vacated on other grounds, 449 U.S. 894 (1980); accord Falmouth Ob-Gyn Assocs., Inc. v. Abisla, 417 Mass. 176, 179 (1994) (citing Corcoran v. S. S. Kresge Co., 313 Mass. 299, 303 (1943)). Massachusetts courts have long recognized the common law rule that "the validity of a marriage depends upon the question whether it was valid where it was contracted; if valid there, it is valid everywhere." Commonwealth v. Lane, 113 Mass. 458, 463 (1873); accord Medway v. Needham, 16 Mass. 157, 160 (1819). Marriage evasion statutes, like G. L. c....
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