Defiance, rebuke on gay marriage
Romney aide rips Provincetown
Governor Mitt Romney’s top spokesman yesterday equated Provincetown’s plans to marry out-of-state gay couples with marrying children, as rhetoric heated up over Romney’s threat to take legal action if the town issues marriage licenses to gays who don’t plan to live in Massachusetts.
“What next, is Provincetown going to start marrying 10-year-olds in violation of the law?” Romney spokesman Eric Fehrnstrom said in an e-mail response to a reporter’s questions about Romney’s legal strategy yesterday. “Are they going to refuse to enforce the drug laws? Will they ignore the gun laws, too?”
“The Commonwealth of Massachusetts has an interest in making sure the laws are enforced evenly, not selectively,” he added. “And everyone, especially spouses and their children, has an interest in making sure marriage in Massachusetts is worth more than the paper it’s printed on.”
The governor’s threat is the latest in a series of statements from him and his staff on his interpretation of a 1913 law that he says bars out-of-state gay couples from marrying in Massachusetts. Last week, his top lawyer had told city and town clerks they could rely on applicants' sworn oaths, without requiring documentation of residency, as assurance that the couples comply with state law.
Romney faces increasing resistance statewide from city and town clerks, who are refusing to follow the governor's demands that they deny marriage licenses to out-of-state same-sex couples after gay unions become legal next week. On Monday, the Provincetown board of selectmen voted to instruct the town clerk to grant marriage licenses to gay couples who live outside of Massachusetts and have no intention of moving here. The clerk should ask for a sworn affidavit that the couple know of no impediment to their marriage in their home state.
After the selectmen's vote, the governor suggested that clerks could face serious legal consequences if they did not follow the law. "I expect local officials to follow this law regardless of their personal views," Romney said in a statement. "If they choose to break the law, we will take appropriate enforcement action, refuse to recognize those marriages, and inform the parties that the marriage is null and void."
Despite the governor's threat of legal action, town clerks in Worcester and several other cities yesterday joined with selectmen in Provincetown in saying they would resist his demands.
"It's unfortunate that the governor is coming down on Provincetown. But we were going to be sued by somebody, and he has the resources to do it," said Provincetown town clerk Douglas Johnstone.
Johnstone said town officials were following the governor's instructions that the town act with equality and fairness. He said the town's newly adopted policy would "obey that guidance."
"We are not doing anything differently than we did before," Johnstone said. "That is, not requiring anything additional that we wouldn't have required for heterosexual couples."
Meanwhile, Worcester City Clerk David J. Rushford said he also will issue marriage licenses to gay and lesbian couples who put an out-of-state address on their applications.
Rushford said that if the applicants do not have a Massachusetts address, he will ask the couple to swear under oath that their information is true and there is "no legal impediment to their marriage."
Rushford said he was not worried about being prosecuted for knowingly providing a license to a couple in knowing evasion of another state's laws. "How would I know whether a license is legal in another jurisdiction?" he said. "My duty is to uphold the statutes and the constitution in this Commonwealth. We're conducting ourselves within the framework of the law, and the regulations, which have not changed."
The question of residency has become the primary flash point as the state prepares to become the first in the nation to legalize gay marriage next Monday, when the Nov. 18, 2003, ruling by the Supreme Judicial Court that allows gay marriage takes effect.
On April 24, Fehrnstrom told the Globe that "out-of-state couples are prohibited from marrying in Massachusetts if they cannot legally marry in their home state," and that the state health department would require clerks to demand documents proving residency before they could issue licenses.
A week later, Romney's top lawyer told clerks that out-of-state couples would not have to show the documents proving residency after all, and that, while clerks would have the freedom to demand documents, the oath couples sign attesting to the truth of their applications would suffice, as it has since 1977. Romney's threat of legal action marks the first time he has said he would seek to punish a clerk who allowed an out-of-state couple to marry.
Several clerks have said they object to being asked to ask couples for proof of their residency, because they have not been required to do so in the past. Romney, a gay-marriage opponent, has said he is obligated to uphold the 1913 law because it is still on the books. The law says out-of-state couples may not marry here if their marriage would be illegal in their home state.
Arline Isaacson, co-chairwoman of Massachusetts Gay and Lesbian Political Caucus, said the governor's pressure on town clerks to enforce the 1913 statute is discriminatory and reflects his "right wing" views of the controversial social issue of gay marriage.
"We are talking about the law written to prevent interracial couples from marrying. Why would they start now to use it as a weapon against gay people? Clerks are not supposed to be marriage police," Isaacson said.
She denounced Fehrnstrom's statement as "inflammatory nonsense."
Linda Hutchenrider, president of the Massachusetts Town Clerks' Association, said she worries that her members could face penalties; she has encouraged them to follow Romney's directives. "They've put us in a very difficult position," she said. "Instead of giving us a 1-2-3 process, they've left a wide-open door of discretion on this, and it puts the clerk in the position of being sued."
Meanwhile yesterday, another legal battle over gay marriage was derailed when former Boston mayor and Vatican ambassador Raymond L. Flynn's appeal to reverse the SJC's decision legalizing the unions was dismissed.
The case, which was to be heard today in Suffolk Superior Court, was deemed too similar to a previous appeal brought by 13 state lawmakers earlier this month, Flynn said last night. Justices dismissed that case.
"The purpose of the whole effort was to give the people of the Commonwealth of Massachusetts the vote on this issue, one of the most defining issues of our day," Flynn said. "This isn't an issue about denying anyone their rights. It was to give the people of Massachusetts a voice."
Sarah Schweitzer and David Abel of the Globe staff contributed to this report. 