May 19, 2004
Governor Moves on Non-Massachusetts Couples
By PAM BELLUCK
BOSTON, May 18 - One day after the start of same-sex marriages in Massachusetts, Gov. Mitt Romney demanded copies of marriage applications from four cities and towns that are defying his order not to marry out-of-state couples.
Officials in Somerville, Worcester, Springfield and Provincetown said they were called by the governor's legal counsel and told to send the applications, in some cases by overnight mail, to the state, something Massachusetts towns have not been required to do before.
For weeks, Mr. Romney, an opponent of same-sex marriage, has been saying that gay and lesbian residents of other states cannot marry in Massachusetts unless they intend to move here. He has said he does not want Massachusetts to become "the Las Vegas of same-sex marriage."
The governor has threatened to fine or criminally prosecute town clerks who issue licenses to out-of-state couples, and he has said that the state will not record those marriages and will inform the couples that their marriages are "null and void." The demand for the license applications on Tuesday appeared to be the first step in that process.
"This is an unprecedented request," said Mayor Joseph A. Curtatone of Somerville, where about 12 of the 45 marriage applications since Monday have been from out-of-state couples. "I do have concerns that there's a political focus on these out-of-state couples. Those couples came here in good faith."
A spokeswoman for Mr. Romney, Shawn Feddeman, declined to comment.
More than a thousand same-sex couples have applied for marriage licenses here since Monday. Gay-rights advocates have been urging out-of-state couples to exercise caution before deciding to apply in Massachusetts, and town clerks say the majority of the applications have come from Massachusetts residents. Others have come from out-of-state couples with plans to move to Massachusetts, or who have weekend or summer homes that allow them to comply with the residency requirements.
Still, scores of couples with no ties to Massachusetts have applied, especially in the four defiant communities, and dozens have obtained judicial waivers of the state's three-day waiting period and have already been married by city clerks, members of the clergy or justices of the peace.
All four municipalities said they had determined they were legally bound to send the documents to the governor's office.
"There's been a lot of conversation among the four cities," said David M. Moore, city solicitor in Worcester, the state's second-largest city, where more than a dozen out-of-state couples have applied for licenses in the last two days. "Eventually you're going to have to give up the records, so you might as well do it on the first ask with civility and courtesy. I hope this issue doesn't get any further than some unpleasant reading in the governor's office."
Mr. Romney's stance on out-of-state couples is based on a 1913 law, adopted in part to bar interracial marriages. The law says the state cannot marry out-of-state couples if their marriage would be void in the couples' home states. The governor has interpreted that to mean that since no other state will marry same-sex couples, Massachusetts can marry only its own residents or those who swear under oath that they intend to move here.
Springfield, Provincetown, Worcester and Somerville have contended that they have never denied out-of-state heterosexual couples marriage licenses, and to do so with same-sex couples would be discriminatory. They say that any application should be accepted as long as a same-sex couple signs the form, which requires them to swear on penalty of perjury that they know of "no legal impediment" to marriage.
"We're on sound legal ground as far as the decision to issue licenses to those couples," Mayor Curtatone said. "I'll fight that battle any day of the week."
Gay rights advocates and city officials said that if the governor's office takes action against the clerks or the couples, a legal battle will result.
"Given that this is a statute that appears to have been put in place to prevent people of different races from getting married in Massachusetts, it has a shameful history, and it is appalling if the state tries to use that today to prevent people from getting married in Massachusetts, said Kevin Cathcart, executive director of Lambda Legal, a national gay rights group. "If they do that, I have to say they are inviting a challenge to a statute whose constitutionality seems doubtful.''
The challenges could come from the out-of-state couples themselves or from the Massachusetts municipalities.
Several out-of-state couples have said they would be willing to be part of lawsuit, if necessary, to assert the legitimacy of their Massachusetts marriage licenses.
"If I needed to I would want to fight it," said Chris Bianchi, 29, of Rochester, N.Y., who married Dennis Skinner, 27, on Tuesday in Somerville. Mr. Bianchi said they would take their marriage license to city hall in Rochester next week and seek to have their marriage recognized.
"We're very excited, but a little on the nervous side because we heard what Romney is trying to do," Mr. Bianchi said. "It would just kind of feel like a short-lived victory to have it for such a short period of time and have it voided right away."
Mr. Cathcart said that couples from a state like New York might face an easier court battle than those from some other states because New York is among a handful of states that do not have laws that specifically prohibit same-sex marriage. New York's attorney general, Eliot Spitzer, has said that under state law same-sex couples cannot marry in New York but that legal marriages from out-of-state should be recognized.
Gretchen Van Ness, a Boston lawyer hired to be a special counsel to Provincetown, where nearly a quarter of roughly 180 marriage applications were from out-of state, said the 1913 law has never been interpreted by a court.
"We're in uncertain territory right now," she said. "The governor has said very clearly that town clerks are supposed to be doing something different than what they've been doing for 30 years. The town of Provincetown looked at the law and said they're not going to change doing things. We don't actually know what it means, and we're waiting to see what happens."
Copyright 2004 The New York Times Company