Reilly says curb on gay marriage blunts backlash

The state's lawyers will argue today that the 1913 law Governor Mitt Romney is using to block out-of-state gay couples from marrying in Massachusetts ''is an important tool in avoiding a national backlash" against gay marriage, because it will allow states to consider the contentious issue ''in their own due course."

The 1913 law bars out-of-state couples from marrying in Massachusetts if their marriages would not be allowed in their home states. Since Massachusetts is the only state that currently allows same-sex marriage, the residency rule prohibits out-of-state gay couples from marrying here, according to Romney.

Eight same-sex couples, together with city clerks who objected to enforcing the law, have filed lawsuits seeking to strike it down. The first legal skirmish over the law will take place today in Suffolk Superior Court, where the plaintiffs will ask a judge to temporarily allow out-of-state gay couples to get married pending a final ruling.

In an 87-page legal brief he submitted yesterday, Attorney General Thomas F. Reilly rejects the plantiffs' contention that the residency law is discriminatory, pointing out that it is now being applied to all couples seeking marriage licenses, whether they are gay or straight.

But he also argues that the 91-year-old statute will blunt support for a federal constitutional amendment banning gay marriage, which the US Senate is scheduled to debate this week. Romney recently testified on Capitol Hill in favor of the amendment.

''Support for the amendment could grow in future years if same-sex couples from every other state are able to come to Massachusetts to marry and then return to their home states and begin litigating to seek recognition of their marriages," according to Reilly.

Reilly also argues that scrapping the 1913 law might prompt many of the 37 states that currently have laws barring same-sex marriage to write a ban into their state constitutions, which would make it ''much more difficult to eliminate later, should attitudes about same-sex marriage change."

But Michele Granda, an attorney with Gay & Lesbian Advocates & Defenders and the lead lawyer for the same-sex couples who brought the lawsuit, called Reilly's reasoning ''ironic."

''Under the Goodridge decision, Massachusetts can't put its stamp of approval on a law that denies marriage rights to gays and lesbians," Granda said, referring to November's ruling by the Supreme Judicial Court legalizing gay marriage. ''Now the Commonwealth is trying to hide behind the laws of other states to do that very same thing, which is just perpetuating that very same discrimination."

Reilly, who is often mentioned as a potential Democratic challenger to Romney in 2006, has not taken a clear public position on the issue of gay marriage, but as the state's top lawyer he is charged with defending the 1913 law in court. At Romney's behest, Reilly last May ordered four communities to stop issuing marriage licenses to out-of-state same-sex couples. But a month earlier, he rejected Romney's request to argue for a judicial stay to halt all gay marriages pending a final decision by the voters on a state constitutional amendment, saying there was no legal basis to do so.

The plaintiffs in the current lawsuit note that during the last three decades of the 20th century, the 1913 law was largely forgotten. Now, they argue, it has been revived for the express purpose of discriminating against out-of-state same-sex couples.

''What we're talking about here is how Massachusetts treats people who come to Massachusetts to marry," Granda said. ''This is about the law that Massachusetts applies when somebody applies for a Massachusetts license from a Massachusetts clerk in Massachusetts. They want the focus to be that they're discriminating elsewhere, and that's not convincing to me."

Critics of the 1913 law, which was approved during an upsurge in racism in the United States, argue that it was intended to prevent interracial couples from the 29 states that prohibited interracial marriage at that time from marrying in Massachusetts. The Bay State had scrapped its own antimiscegenation law in 1843. They accuse Romney of using a shameful vestige of the nation's racial past for his own purposes.

But Reilly disputes the idea that the law is rooted in racism. His brief states that the law was first proposed in 1912 by the National Conference of Commissioners on Uniform State Laws, a body of judges, professors, scholars, and lawyers who wanted to create roughly equal statutes from state to state. ''Marriage between a white and a negro" was one of the examples of state-specific prohibitions the group mentioned, but it wasn't the only one. It also cited marriages with a minor without parental consent, and marriages within a specified time after entry of final decree in divorce.

Granda acknowledged that the authors of the law may have had ''a number of different reasons" for passing it, but she says blocking interracial marriage was the primary one.