Marriage eligibility wasn't enforced

For 27 years, the state has specifically instructed city and town clerks not to enforce eligibility requirements for marriage applicants, including a residency requirement that Governor Mitt Romney wants to use to block out-of-state gay couples from marrying in Massachusetts.

Department of Public Health documents provided to the Globe show that the state repeatedly told city and town clerks that they should be facilitating marriages, rather than actively enforcing laws that might prohibit them. Some of those documents explicitly instruct clerks not to check on marriage applicants' legal status and residency.

"The oath they take after filling out their intentions affirms that the information they've provided is true to the best of their knowledge," reads a 1995 Health Department memo outlining general policies and procedures for granting marriage licenses across the state. "Otherwise, they will have committed perjury. However, it is not the clerk's job to prevent them from committing perjury. Your job is to assist them in getting married."

Elsewhere, the 1995 document reads: 'A clerk CANNOT AND MUST NOT question the citizenship or legal status of a marriage applicant," "DO NOT ROUTINELY ASK FOR BIRTH RECORDS OR OTHER PROOF OF AGE," and "DO NOT, HOWEVER, ASK FOR PROOF OF DIVORCE."

A former Health Department registrar said that the state was seeking to impose a uniform policy and did not want the city and town clerks to be required to store and maintain a high volume of the paperwork required to prove couples were eligible for marriage licenses.

Residency is crucial to the prospects for gay marriage in Massachusetts, because Romney and Attorney General Thomas Reilly argue that a 1913 law prohibits Massachusetts from permitting marriages that would be void in other states.

To enforce the Massachusetts law, Romney has reinstated the requirement that clerks ask for proof of residency from marriage-license applicants. On new notice-of-intention-of-marriage forms to be sent to cities and towns, clerks will be instructed to ask for evidence of where a person resides and intends to reside. Among the documents that would prove residency are current voter registrations, driver's licenses, auto registrations, and deeds.

A Romney spokesman, Eric Fehrnstrom, said the new procedure is a shift in policy, but insisted the governor is enforcing a law that has been on the books since 1913. Fehrnstrom has said that Romney "does not have the luxury of choosing which laws to enforce and which ones to ignore."

"I can't speak to what previous administrations have done or said, but I can tell you the [SJC] decision changed everything," Fehrnstrom said. "It changed the definition of marriage, it changed the way the new marriage forms look, and it changed the way city and town clerks will carry out the requirements of the law. We intend to enforce the law."

The 1913 law states, in part, that "no marriage shall be contracted in this Commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this Commonwealth in violation hereof shall be null and void." Reilly has interpreted that law as applying to couples from the 38 states that explicitly ban gay marriage. Romney has interpreted it much more broadly, to apply to residents of all 49 other states, since none of them explicitly allow gay marriage.

Until now, clerks were required to display an excerpt from the 1913 law in their offices, but not to require proof that marriage applicants had met its requirements. Instead, they were instructed to accept an oath signed under the pains and penalties of perjury that there was no legal impediment to marriage.

The state instructed clerks to stop demanding proof that there were no legal impediments to their marriages after 1976, said Elaine B. Trudeau, Health Department registrar from 1983 to 2001.

"It was done so that the procedure would be uniform, and they wouldn't be maintaining huge amounts of paper at the city and town level," said Trudeau, a 27-year Health Department employee who retired in 2001. "We were required under the old law to keep copies of paper proof. After 1976, we do not ask for proof on a standard" marriage application.

"We've never asked for proof of residency before," said Judith St. Croix, town clerk in Wayland, and the first vice president of the Massachusetts Town Clerks' Association. "For 18 years, I never asked for proof of anything else [besides age]. The 1913 law never came into play before. We never had to ask heterosexual couples where they live, because it doesn't matter. Have we ever had to apply that law? No."

St. Croix said clerks would comply with the new requirements: "We take an oath to uphold the law of the Commonwealth, and if that's the law of the Commonwealth, we have to uphold it."

Mary Bonauto, legal director for Gay and Lesbian Advocates and Defenders, complained that the shift in Health Department policy amounts to discrimination.

"Any nongay people who want to come and marry have been permitted to do so, regardless of whether their home state allowed them to do so or not," Bonauto said. "But now we have a new set of rules, now that same-sex couples are going to marry, to check their ID, check their utility bills, check their plans for the future regarding where they intend to reside, which has not been applied to any nongay people. In legal terms, that's discrimination."

In another instruction manual for clerks, also from 1995, the Health Department tells them, "DO NOT ASK FOR PROOF OF CITIZENSHIP OR LEGAL STATUS: There is nothing in Massachusetts law that requires the proof of residency or one's legal status to marry in the Commonwealth."

The instructions tell clerks to draw the couple's attention to a poster listing impediments to marriage, one of which is the law stating that marriages that would be illegal in their home states will not be legal in Massachusetts.

Sanford Katz, professor of law at Boston College, said the previous Health Department policy was the right one.

"My view is, it should be up to the individuals to determine for themselves whether their states will or will not honor the marriage," he said. "I don't think it is appropriate for clerks and justices of the peace to make that determination. The laws in other states are in flux, and one shouldn't be quite so quick to say that same-sex marriage won't be approved in another state. There may be challenges [seeking same-sex marriages] in other states, so it puts an enormous burden on clerks to make that determination."

Raphael Lewis of the Globe staff contributed to this report.