Senators would let gay outsiders wed
Amendment seeks repeal of 1913 law
Senate Democrats are launching an effort to repeal a 1913 law that Governor Mitt Romney is using to block out-of-state gay couples from marrying in Massachusetts, and the lawmakers hope to stage a floor debate next week, as the state prepares to legalize same-sex marriages.
Senators Jarrett T. Barrios of Cambridge and Stanley C. Rosenberg of Amherst are filing an amendment to the state budget that would effectively eliminate the residency requirement for same-sex couples seeking marriage licenses. It was unclear yesterday whether the bid would pass the Senate, but the effort would focus attention on the controversial law before same-sex couples can legally marry on May 17. "I believe that my colleagues in the Senate will agree that there is no place for race discrimination, or sexual-orientation discrimination, in our statutes, and the time has come to eliminate the 1913 discriminatory law," Barrios said.
The 1913 law, adopted in part to block interracial couples from other states marrying in Massachusetts, prohibits out-of-state couples from marrying if the marriages would be void in their home states. Romney has said that the law prohibits residents of all 49 other states from entering a same-sex marriage, since none of those states specifically allows gay marriage. His critics have said Romney's interpretation of the law is too broad, and that the law is archaic and unevenly applied.
Because the move to repeal the law is an amendment to the state budget, the proposal will almost certainly make it to the Senate floor, senators said.
"If [the repeal of the 1913 law] is included in the budget, without going through the circuitous hearing process, we will be able to act on this," Barrios said, adding that a repeal of the law could be won "if it is the will of both branches."
"There are many supporters of fairness on the House side," he said.
It is almost guaranteed to make it onto the Senate floor, said Senator Brian P. Lees, the East Longmeadow Republican who most often rises to block debate on legislation he considers peripheral. He said he would not challenge debate on the 1913 law.
"Nearly all [budget] amendments are able to be brought to floor and are able to be debated, and always have been in the Senate," Lees said, adding that he believes the law probably should be repealed.
"I think that particular law is somewhat archaic," he said. "For years, it has not been enforced with heterosexual couples."
Lees added that he did not think out-of-state couples had much to gain from the law's repeal, since they would be returning to states where their marriage "isn't recognized or sanctioned or where any benefit would come of it."
"But if it is the law in Massachusetts and we don't want to discriminate in any way, shape or form, we could change this law," he added.
Gay-marriage supporters have accused Romney of dusting off an anachronistic law with a shameful past. But the administration points out that Justice John M. Greaney of the Supreme Judicial Court referred to the law in his opinion concurring with the majority's gay-marriage ruling. Greaney wrote that the existence of the law rebuts "the argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other states as a tool to obtain recognition of a marriage in their state that is otherwise unlawful."
Romney has previously said that it is his obligation to enforce the laws that are on the books and that if gay-marriage supporters want to stop him from enforcing this law, they should work for its repeal. Romney has said that he would respect their decision, but that as long as the 1913 law is still on the books, he would enforce it. His spokeswoman declined to comment yesterday on the Senate amendment.
Lees said he also supports Romney's position, that the law should be respected while it remains on the books.
Even if the amendment repealing the 1913 law passed the Senate, it would still have to make it through the rest of the budget process, through conference committee, in which House and Senate leaders hash out a budget compromise, and then through a vote in each chamber on the budget.
A bill to repeal the law, proposed in April by Representative Robert P. Spellane, a Worcester Democrat, is not expected to make it through the thicket of legislative procedure and into debate, because House leaders would be opposed to it, legislators said.
But Representative Byron Rushing, a gay-marriage supporter, said he was more optimistic about the Senate proposal.
"It would be too embarrassing in the conference committee not to go along with it," said the South End Democrat. "I think we'd have a good shot at getting the speaker to back away from killing it."
Daniel B. Winslow, Romney's top lawyer, declined to say whether the governor would veto the repeal of the 1913 law, saying only that "the constitutional role of the executive branch is to follow the law, and that's what we'll do."
Winslow spoke after delivering gay-marriage instructions to about 100 city and town clerks at the University of Massachusetts Medical School in Worcester, his second such presentation in as many days. As he did in Hyannis on Tuesday, Winslow told the clerks that under the 1913 law they are entitled to ask for residency proof, as long as they require it of all couples.
But he also pointed out that according to the law a clerk merely "has to satisfy himself, by requiring affidavits or otherwise" that the couple is telling the truth. The signed marriage application, which includes a statement of residency, qualifies as an affidavit.
Winslow's instructions to the clerks mark a shift from what administration officials were saying several weeks ago, when they suggested that couples would have to show documents, such as driver's licenses, utility bills, or rental leases, to prove residency. But Winslow insisted that the administration has known all along that a signed application qualifies as proof under the law.
"The bottom line is, will out-of-state, same-sex couples be allowed to get married in Massachusetts?" Winslow said. " And the answer is no."
Several clerks who attended yesterday's meeting said that beginning May 17 they plan to ask all couples for documents proving residency, even if they have not done so before. The reason, they said, is that it is likely they will want proof from at least some couples, so to be fair they will ask for it from all of them.
"I think we're all going to have to start checking documentation from all couples," said Sandra Burgess, the town clerk in Pelham. "If we, after May 17, find ourselves in a situation where we do feel we have to question someone, then we'll have to question everyone." 