Reilly gives governor a hurdle

Attorney General Thomas F. Reilly last night rejected Governor Mitt Romney's bid to seek a Supreme Judicial Court order to delay implementation of its gay marriage ruling, creating a major roadblock to the governor's plans to block same-sex marriages from taking place in May.

Reilly said that he informed Romney shortly after the Legislature approved a proposed constitutional amendment banning gay marriage that the governor's legal arguments have no validity, because the SJC has twice ruled in favor of gay marriage.

"It is very clear to me as attorney general that the majority of the SJC have made up their mind," Reilly said, adding that he strongly disagrees with the court's ruling. "That is the law of the state. My job as attorney general is to implement that law, and I will not compromise."

Reilly's decision, which he delivered personally to Romney in a phone conversation just before the governor went on live television to announce his plans, creates a major legal and political hurdle for the governor, who is intent on blocking the May 17 implementation of the court ruling.

Under state law, the governor can be represented in the courts only by the attorney general's office or lawyers who are appointed as special assistant attorneys general, according to personnel in Reilly's office familiar with the process. A senior Romney administration official said the governor's staff agreed with that reading of the law.

It was unclear last night whether Romney had asked Reilly to appoint a special assistant attorney general to represent him in seeking the stay. But senior aides to Reilly said he would reject such a request. Former attorney general James Shannon said that Romney has no legal recourse to press his appeal to the SJC without Reilly. "I don't think the governor has any option to get around the attorney general here," said Shannon, who supports gay marriage. "I think that's it as far as a stay is concerned."

Shannon said there is strong case law that gives state attorneys general broad powers to determine legal strategy. Because Reilly's office has been defending the state in the gay-marriage lawsuit, first filed in April 2001, ongoing decisions about the case are part of his legal strategy and are well within the attorney general's authority, Shannon said. Because none of the groups that wrote friend-of-the-court briefs in the gay-marriage case were parties to the case, Shannon said, they would not have legal standing to intervene.Romney and Reilly are potential rivals in the 2006 race for governor, but Reilly, a Democrat, insisted last night that his decision is solely based on legal issues: He is convinced that Romney's argument has no validity in light of the SJC rulings. Despite Reilly's statement to him that he would not entertain the petition, Romney went before television cameras at the State House and said he was making a formal request to the attorney general.

Romney's aides said the governor would deliver a three- to four-page letter to Reilly today detailing legal arguments for the stay.

"It's unusual for the attorney general to make a decision before first looking at the request from the governor," Shawn Feddeman, spokeswoman for the governor, said after Reilly told reporters of his decision to reject Romney's request. "We hope that when the attorney general sees our legal arguments, he will reconsider."

Asked why he would not wait to study the governor's legal briefs before deciding, Reilly said that the SJC in its Nov. 18 ruling and its February affirmation of that opinion had been clear and unequivocal in finding that same-sex couples were legally entitled to marry under the state constitution.

Reilly pointed out that he had helped write a Senate-sponsored bill that would have established civil unions provided all the protections of marriage, but the court, in very strong language, had rejected the concept as a violation of the civil rights of gay couples.

But Romney aides said the governor's legal argument has not been addressed by the justices: the notion that confusion and legal chaos would result if same-sex marriages are permitted beginning in May and then outlawed by voters in a 2006 referendum.

"That's a new argument the court has not heard," said Eric Fehrnstrom, the governor's director of communication. "We hope the attorney general will reconsider once he sees the governor's formal request."

Reilly said he is not swayed by the arguments that gay couples who marry will be hurt and that the state will be in legal confusion if the voters later approve an amendment banning same-sex marriages. "Everyone is going into this with eyes wide open," he said. "There doesn't have to be any chaos if people do their job."

Dwight Duncan, a lawyer for the Massachusetts Family Institute and other groups opposed to gay marriage, agreed with Romney that allowing gay couples to marry beginning May 17, with the prospect that voters might ban gay marriage in November 2006, invites legal chaos.

"It just seems to introduce a whole host of complicated legal questions," Duncan said.

Romney has insisted that he will "act within the bounds of the law" that exist on May 17, but all signals from his administration indicate he plans to take as many legal steps as he can to block implementation of the SJC ruling.

Gay-marriage opponents argue that the governor has the constitutional power to block same-sex marriages from taking place, a position that many prominent constitutional scholars say has no basis.

"The governor can act regardless of what the legislators do," said Ronald A. Crews, a spokesman for the Coalition for Marriage, a group that has called on Romney to seek a stay of the SJC's decision until voters have decided the issue in 2006.

Crews said lawyers for his coalition believe that Romney has the constitutional authority to define marriage. He said the state constitution is one of the few that involves the governor in marriage issues. Chapter 3, Article V, allows the governor a role in determining "all causes of marriage."

"We believe the governor has the law behind him," said Crews.

But many constitutional scholars reject the notion and say Romney's legal maneuvers will not sway the high court. They say the governor's powers under the Massachusetts Constitution regarding marriage are trumped by its equal protection language.

Laurence H. Tribe, a professor of constitutional law at Harvard Law School, said those requirements "must, like all other parts of the state constitution, be enforced by the governor in accord with the authoritative construction given to them by the SJC."

Tribe said the argument that the SJC delay implementation of its decision until the issue goes before voters in November 2006 is "speculative actual prediction" that voters will support an amendment that has only won initial approval from lawmakers. The amendment won't make it on the ballot until a second vote by the Legislature in its next session, beginning in January.

"Piling prediction upon prediction to ask the SJC for an unprecedented 2 1/2-year extension of a half-year stay already granted by the SJC . . . seems far-fetched in the extreme," Tribe said.

"Not only would such a further stay be unprecedented in its duration, but denying people the fundamental right to marry the partner of their choice purely on the gamble that this right may be rolled back by the electorate some 30 months hence would represent a step unprecedented in character."

Mary Bonauto, a lawyer with Gay and Lesbian Advocates and Defenders who represented the seven same-sex couples who sued for the right to marry, said there is no basis for a stay because the law has not changed.

"This is just a bill that has been advanced for further consideration, but may not survive the next Legislature and certainly can be defeated at the polls," she said.