More clerks plan to ignore marriage-form residency rule
With the issuance of marriage licenses to gay couples just 12 days away, more Massachusetts communities say they will probably defy Governor Mitt Romney's directive to ask same-sex couples for proof of residency when they apply for permission to marry.
Clerks in Northampton and Lowell said yesterday they hope to ignore Romney's instructions. Other clerks said yesterday that they were also considering refusing to ask for proof of residency, but will decide after they attend training sessions on the new procedures, the first of which is slated in Barnstable today.
"I'm pretty angry over the whole thing, that we have to be the residency police," said Northampton Clerk Wendy Mazza, who is seeking an opinion from her city's attorney on the legality of ignoring the governor's directive. "This has never been an issue before. Now all of a sudden, it's an issue. When a couple comes in here, they sign an [oath] that there is no impediment to their marriage, and that's as far as any city clerk should have to take it."
Lowell Clerk Richard C. Johnson said that once gay marriage is legal in the state, beginning May 17, he will not ask gay couples for proof of their Massachusetts residency because he is "trying to treat everyone equally, and presently, we do not ask heterosexual couples whether or not they are residents of Massachusetts."
"I will not ask for [proof] of a Massachusetts address," Johnson said. "If they're filing that Intention [of Marriage] under pains and penalties of perjury, I don't think it's incumbent on city and town clerks to verify whether someone is or is not a resident of the state."
Johnson said he would instruct his staff to leave blank the spaces for proof of residency on new application forms to be distributed by the state.
"I don't intend on handling homosexual or gay marriages any differently than we handle heterosexual marriages," Johnson said.
Mayor Thomas M. Menino of Boston said last weekend that he wishes to defy the new requirement. And Worcester Clerk David J. Rushford has said he will refuse to ask for proof of residency and intends to leave that part of the new marriage license forms blank.
Romney, who opposes gay marriage, has said that, under a 1913 law, only couples who intend to reside in Massachusetts will be eligible for licenses when gay marriage is legalized May 17. His critics have said Romney is dusting off a law that was unevenly applied in the past and that his interpretation is overly restrictive. Clerks have not asked couples for proof of marriage eligibility for 27 years.
A spokeswoman for Romney refused to say what the governor would do if clerks defy his wishes.
"It seems a little premature for clerks to indicate they won't follow instructions, when we have not provided them with instructions yet," said Shawn Feddeman. "We expect them to follow the law."
Feddeman said the clerks will be given wide discretion over what proof satisfies the residency requirement: a deed to a vacation home may be sufficient if a clerk deems it so, she said. But she added that, under the 1913 law, marriages that would be invalid in a couple's home state will also be invalid in Massachusetts.
"No matter how a clerk chooses to act, everyone should be aware that marriages performed outside the law are null and void," she said.
Ronald A. Crews, president of the Massachusetts Family Institute, said yesterday he was disappointed in the clerks planning to defy the governor.
"I'm disappointed that mayors think they can take the laws in their own hands and disobey the law," he said. "If they believe it's a bad law, they should talk to their state reps and get the law changed, but in the meantime, I think mayors should set a good example and obey state law."
Legislation has been filed to repeal the 1913 law. Clerks said yesterday that they expect the residency law to be challenged in court almost immediately.
Starting with today's meeting on the Cape, clerks from Massachusetts' 351 cities and towns will be attending one of five voluntary sessions with Romney's lawyer around the state. Feddeman said 60 clerks had signed up for the Barnstable session.
Mary Bonauto, legal director of Gay and Lesbian Advocates and Defenders, welcomed the news yesterday that more municipal clerks plan to avoid enforcing the 1913 law.
"It's not surprising that these clerks would see the governor's proposed enforcement mechanism as unfair and unjust," Bonauto said. "Even more, it's also a burden on the clerks. They sign up to help people, to issue marriage licenses, to issue fishing and hunting licenses, to monitor elections. They didn't sign up to discriminate against people."
Clerks in some communities hope to find a way to avoid asking for proof of residency, and look forward to the training sessions.
Many clerks said yesterday that they do not like the new residency requirement, but feel they have no choice but to comply. "Rocks and hard places," said Laurence Pizer, Plymouth town clerk. "On the one hand, we don't want the state to come down on the town and say we're doing something illegal. But on the other hand, we don't want to be accused of discrimination. That's the road we have to tread." 