Marriage restriction debated

Governor Mitt Romney's plan to bar out-of-state gay couples from marrying in Massachusetts provoked strong reactions yesterday, drawing fire from those who said it discriminates against out-of-staters and praise for respecting the laws of other states.

Some questioned Romney, a gay-marriage opponent, for using a 91-year-old law to limit gay-marriage rights after the state's highest court had upheld them. Others said he was using the gay-marriage issue to promote his national image.

"If he wants to play a role as a moderate national statesman, he ought to pay more attention to the Constitution," said Laurence H. Tribe, a constitutional law professor at Harvard Law School who has argued in support of gay marriage. He called Romney's position "wildly implausible" and "legally weak."

But Ronald Crews, president of the Massachusetts Family Institute and an opponent of same-sex marriage, praised Romney for upholding Massachusetts law and for respecting the laws of other states.

"States should be able to set definitions around marriage, and then one state should respect another state's definition," Crews said.

Romney announced over the weekend that the state would prohibit gay couples who live outside of Massachusetts from marrying here.

The governor has a responsibility to uphold state law, including a 1913 law that says out-of-state couples cannot be married here if their marriage would be "void" in their home state, said Romney spokesman Eric Fehrnstrom.

He said people from jurisdictions where gay marriage is legal -- the Canadian province of Ontario, for example -- would be allowed to be married in Massachusetts.

"We're being consistent with our approach in terms of enforcing the law," Fehrnstrom said.

To enforce the prohibition against out-of-state couples, heterosexual and homosexual couples will be required to show a driver's license, utility bill, or other evidence that they live in Massachusetts when applying for a marriage license, Fehrnstrom said.

Gay marriage becomes legal in Massachusetts on May 17. No other state has legalized it, and most have laws limiting marriage to heterosexual couples.

In Boxborough yesterday, Romney's chief legal counsel, Daniel B. Winslow, told a meeting of the Massachusetts Justices of the Peace Association that the administration would not tolerate justices who flout the law. The warning came after some justices said they would sooner resign than officiate at same-sex weddings.

"If a justice of the peace cannot comply with his or her oath of office, then we would expect that person to tender their resignation from that office," Winslow said. Later, outside of the meeting, Winslow said clerks are required to carry out the administration's policy. He declined to specify what penalty a renegade clerk might face, but said the administration's policy is "absolutely workable."

The Massachusetts Supreme Judicial Court ruled in November that it is unconstitutional to prohibit same-sex couples from marrying. Mary Bonauto, a lawyer at Gay and Lesbian Advocates and Defenders, said that under the 4-3 court ruling Romney has no right to deny marriage to out-of-state couples simply because other states do not permit the couplings.

"Under the governor's logic, if some state again started banning marriages between Catholics and Protestants, then would Massachusetts enforce that?" she asked.

Fehrnstrom disagreed.

"If people don't like the law as it currently exists in Massachusetts, they should endeavor to change it," he said. "The governor is in the position of having to enforce all of the laws of the Commonwealth. He can't pick and choose which ones."

The 1913 law was passed in Massachusetts partly to uphold laws in other states that barred interracial marriage. Bonauto said a lawsuit challenging the 1913 law is "inevitable" after gay marriages begin next month.

At the State House, some lawmakers are pushing legislation that would undo the 1913 law.

Still, the Legislature has given initial approval to a constitutional amendment that would ban gay marriage and create civil unions. The issue will not come before voters until 2006 at the earliest.

Just as many same-sex couples traveled to Vermont after it became the first state to legalize civil unions in 2000, many couples have made plans to travel to Massachusetts after the court ruling takes effect.

Some worry that Massachusetts will become a gay-marriage magnet for couples from around the country, while others -- from wedding planners to caterers -- see it as a potential windfall that would boost their businesses and the state's economy.

Massachusetts Attorney General Thomas F. Reilly, the state's top lawyer, has said the 1913 law prohibits same-sex couples from marrying here if their home state forbids gay marriage, as is the case in at least 38 states. But Romney took that a step further over the weekend, saying gay couples from all 49 other states would be prohibited from marrying here.

Romney has said he fears the chaos that would ensue once Massachusetts legalizes gay marriage and the conflicts it would create with laws in other states. He plans this week to send letters to the governors and attorneys general of the 49 other states, asking them to confirm his understanding that gay marriage is not legal in their states.

City and town clerks will be charged with granting marriage licenses and carrying out Romney's new policy. Yesterday, Provincetown town clerk Douglas Johnstone said the ban on out-of-state couples adds to the confusion.

"How does the state define residence, particularly in towns with a summertime population that spends months here and then moves away?" Johnstone said. "It begs a whole host of questions."

But William Barnett, the clerk in the Western Massachusetts town of Belchertown, said he had no problem with the policy. "I will do whatever the state informs us that we have to do," he said.

New York Attorney General Eliot L. Spitzer announced last month that his state, which has no law prohibiting same-sex marriage, would recognize same-sex marriages conducted elsewhere. In Seattle, the City Council voted this month to recognize same-sex marriages performed in other states and countries.

Some gay couples from out of state are already planning wedding trips to Massachusetts. In an interview, Alison Greene, 42, said she and her partner of 14 years, Carmen Roundtree, 45, plan to travel from their Maplewood, N.J., home to be married at a Unitarian church in Cambridge in late May.

Greene said she hopes to be able to receive a marriage license despite living out of state, but said, if challenged, she would not lie about her address. She said she would consider joining a lawsuit challenging the 1913 law if one is filed.

"No one's ever asked a straight couple why they wanted to go to Hawaii and get married on the beach," Greene said.

Tribe said Romney's decision to ban out-of-state gay couples from marrying here defies the US constitutional principle that a state cannot discriminate against out-of-state residents on fundamental rights -- in this case, the right to marry.

He said the 1913 law could be challenged in court either by out-of-state couples who claim discrimination or by justices of the peace in Massachusetts who claim that the state's prohibition against out-of-state couples infringes on their oath to uphold the US Constitution.

The Romney administration has said the changes in marriage application forms will apply equally to heterosexual and homosexual couples.

Jo Ann Citron, a partner in the Boston firm of Altman & Citron who teaches a course in alternative family law at Wellesley College, blasted the new policy.

"This requirement was never imposed on people applying for licenses until some of those people were same-sex couples," she said. "To apply it to everybody now makes it no less discriminatory."

Fehrnstrom denied that the law was being revived to target same-sex couples. He said the law has been applied consistently over the years to make sure out-of-state couples who get married in Massachusetts adhere to the age and family relation restrictions of their home states.

US Senator John F. Kerry declined to comment yesterday on Romney's policy. Kerry, the presumptive Democratic presidential nominee, told reporters while traveling in Iowa that he had not read the story, and a spokesman said the campaign would have no comment.

Patrick Healy of the Globe staff, who is traveling with Kerry in Iowa, contributed to this report.