Municipalities say residency won't be an issue

PROVINCETOWN -- As Rhode Island and Connecticut prepare to announce today whether they will recognize same-sex marriages from Massachusetts, a number of Bay State communities said the status of gay marriage is far more fluid than the governor has declared and plan to defy his directive barring marriage licenses for same-sex couples from other states.

Provincetown, Somerville, and Worcester officials said that any same-sex couple, from in-state or out-of-state, would be eligible for a marriage license so long as the couple sign an oath attesting that they know of no legal impediment to marriage in their home state.

"We will take marriage licenses no matter where the couple resides," said Worcester City Clerk David Rushford. "We are not the marriage police."

The move is a defiant stand against Governor Mitt Romney, whose administration has said that a 1913 law bars couples from marrying in Massachusetts if their home state would not recognize the marriage. The administration has said that no other state recognizes same-sex marriage and thus same-sex couples from outside Massachusetts are barred from marrying here.

Officials in the dissenting municipalities note that the situation is in flux, with the border states of Connecticut and Rhode Island rushing to issue legal opinions today. New York's attorney general indicated last week that New York law requires the state to recognize marriages legally performed in other states.

Town and city officials say the burden of figuring out the legal complexities and consequences should not fall to municipalities.

"The town clerk should not be put in the position of having to make a legal determination of what other states say," said John Giorgio, the town counsel for Provincetown.

While Provincetown, Somerville, and Worcester have previously signaled an openness to issuing marriage licenses to nonresidents, the possibility of recognition in other nearby states appears to embolden them and strengthen their resolve.

Still other communities yesterday said they remain committed to following the governor's directive, Boston included.

"Boston is allowing people to apply for a marriage certificate if they live in Massachusetts or intend to live in Massachusetts," said Seth Gitell, a spokesman for Mayor Thomas M. Menino.

The split in opinion sent hundreds of couples spilling over the state border and heading toward Provincetown, Somerville, and Worcester yesterday.

Cody Rogahn and his partner, Jonathan Yarbrough, of Minnesota, who last year held a commitment ceremony in their home state and were married in Canada, will be the first couple to receive a certificate of intention to marry in Provincetown, having secured the first appointment at 8 a.m. They plan to marry tomorrow as well, at a private dockside location overlooking the harbor.

Rogahn, 55, a retired school superintendent, said he was aware the marriage might not stand in Minnesota.

"It's an emotional thing, and eventually, maybe in 10 years, it will become legal," Rogahn said.

The issue of out-of-staters has created a legal limbo for police and prosecutors.

The Romney administration has warned that clerks who issue licenses to out-of-state couples could face penalties. While the Middlesex and Norfolk district attorneys said they would not take action against clerks, Cape and Islands District Attorney Michael O'Keefe, whose jurisdiction includes Provincetown, said on Friday that he was prepared to take action against any clerk who issued licenses to out-of-staters. He softened his stance over the weekend, saying that he was not prepared to take any particular course of action at this point.

Provincetown Police Chief Ted Meyer said he would take direction from both O'Keefe and the town attorney. The town attorney has directed officials to honor marriage license requests of out-of-staters who attest that there is no legal impediment to marriage in their home state.

"The reason is that for the last 90 years the town clerk has relied upon the oath that was even contained in the previous form," Giorgio said yesterday. "For 90 years that was good enough. They never looked for independent evidence of whether an impediment to marriage existed."