Law curbing out-of-state couples faces a challenge

State lawmakers will fire the latest salvo in the battle over gay marriage today, as Representative Robert P. Spellane of Worcester files a bill to undo a 1913 law that forbids out-of-state couples from marrying in Massachusetts if their union would be illegal in their home jurisdiction.

The law has garnered unprecedented attention in recent weeks, as the days wind down before a landmark Supreme Judicial Court ruling that legalized gay marriages goes into effect May 17.

Governor Mitt Romney has said that his administration plans to instruct city and town clerks to uphold "the law as it exists on May 17" and yesterday made specific reference to the out-of-state question at a meeting of the Governor's Council.

Romney said that his legal staff is compiling a catalog of rules for the clerks to follow and that each will receive a list of states and the laws and court rulings related to gay marriage. He said that clerks will tell couples, "Read it and tell us if you're eligible under your state's law."

"It's going to be a lot of work for the clerks," Romney said.

Spellane hopes to sidestep that work, saying that the 1913 law is not only discriminatory, but violates the SJC's Nov. 18 ruling that banned the exclusion of gay and lesbian couples from the rights and benefits of civil marriage.

"There's no doubt it's a discriminatory law," he said. "People are using it to their advantage. [But] there is no confusion about it in relation to the ruling in November, and it's incumbent on us to remove it."

Clerks have asked couples seeking marriage licenses to sign sworn affidavits, but until now they have not actively enforced the 1913 law, Spellane said. Traditionally, he said, clerks have left it to the couples to determine whether their marriage would be legal in their home state.

As a result, he said, the bill would strike two sections from the state's marriage statute that outline how to deal with out-of-staters.

"The clerks have not enforced these two sections in their normal day-to-day practices," Spellane said. "They don't seek to prove if a marriage had existed or does exist, for example. They take the individuals on their word, swear to the information on the application."

According to Mary Bonauto, a lawyer at Gay and Lesbian Advocates and Defenders, the law was first proposed in 1912 by the National Conference of Commissioners on Uniform State Laws, a body of judges, professors, scholars, and law practitioners concerned with creating roughly equal statutes from state to state.

The law, which was adopted in only five states (Louisiana, which later repealed it, Massachusetts, Vermont, Illinois, and Wisconsin), was in part intended to uphold laws in other states that barred interracial marriages.

Conference documents explaining the law's intent state: "As to marriages against the public policy of any state, e.g. marriages with [criminal intent], or with a minor without parental consent, . . . or between a white and a colored person . . . this act, being general in its terms, will apply to all of these states and give full effect to the prohibitory laws of each state by making void all marriages contracted in violation of such prohibitions."

Bonauto said she read the law as being "intended to cater to the lowest common denominator of discrimination in each state."

"This law was given birth for discriminatory purposes and is being revived for discriminatory purposes," she said.

Shawn Feddeman, a spokeswoman for Romney, said the governor's legal staff is still attempting to understand how to implement the SJC's marriage ruling and is sifting through several state statutes in preparation for May 17.

"We're currently reviewing all relevant [Massachusetts] laws, including that one, with regard to the issuance of marriage licenses to same-sex couples, and we anticipate providing instructions to city and town clerks at the scheduled information sessions," Feddeman said.

Ronald A. Crews -- a former Georgia lawmaker and now president of the Massachusetts Family Institute, which opposes gay marriage -- said that he had been unaware of the law's racial origins, but that such history does not dissuade him from opposing Spellane's bill to repeal it. "Those laws dealing with race are absolutely horrible laws, and I am glad they are no longer with us," Crews said. "And I speak as one who grew up in the South and remembers water fountains that said whites only. That's a horrible image from my childhood."But I still think that states should have the prerogative to protect marriage within the boundaries of their state," he said.

In a footnote in one of the opinions written by the four SJC justices who formed the majority in the gay marriage ruling, Justice John M. Greaney suggested that out-of-staters will not be able to get married in Massachusetts.

"The argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other states as a tool to obtain recognition of a marriage in their state that is otherwise unlawful is precluded," the footnote said.

Earlier this year, Attorney General Thomas F. Reilly said he, too, read the 1913 law as precluding same-sex couples from marrying in the Commonwealth if they reside in one of the 38 states that has passed a ban on gay marriage.

It remains unclear what chances Spellane's bill has of passage, especially since the Legislature is about to take on the task of passing a budget during a fiscal crisis.

Spellane -- a Democrat who is sponsoring the bill with Representatives Thomas M. Stanley of Waltham and Frank Smizik of Brookline, who are also Democrats -- said he has not run the bill by House Speaker Thomas M. Finneran, who controls the fate of most legislation in the chamber. A spokesman for Finneran yesterday declined comment.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, cheered Spellane and his colleagues, calling the 1913 law "nonsensical and inappropriate."

"Our first interest is getting residents of Massachusetts married," Isaacson said. "We'll worry about out-of-state residents afterward.

"But it's an obvious and egregious problem that has to be dealt with sooner or later, and we're glad legislators are being proactive about it," she said.

Material from the State House News Service was used in this report.