Two DAs say they won't charge clerks who defy 1913 law

Two Democratic district attorneys said yesterday that they do not plan to prosecute city and town clerks who defy a 1913 law that Republican Govornor Mitt Romney says bars out-of-state same-sex couples from marrying in Massachusetts, while a third said it was not a top priority.

Middlesex County District Attorney Martha Coakley suggested Romney's interpretation of the law was politically motivated and said it would not be a wise use of her office's resources to prosecute clerks for a criminal violation of the statute.

"It seems to me that it's unfair," Coakley said. "The statute has never been enforced and now there's an effort to enforce it, in my view, to pursue a particular political agenda."

Romney, an opponent of gay marriage, has said the 1913 law bars same-sex couples from the 49 other states from marrying in Massachusetts, unless they plan to move to the Bay State.

State statutes say that knowingly issuing a marriage license to a couple prohibited from marrying under the 1913 law carries a fine of between $100 and $500 or up to a year in prison or both.

How clerks will handle the law, and prosecutors' plans for legal action against them if they don't enforce it, has remained a question as gay marriages become legal in Massachusetts tomorrow.

The Globe reported yesterday that Cape and Islands District Attorney Michael O'Keefe, a Republican, was prepared to bring legal action against town clerks who violate the residency law.

Yesterday afternoon, O'Keefe called the Globe and sought to back off from his earlier statement, saying he was not prepared to pursue any particular course of action at this point and added that he never indicates what his options are before conducting and completing an investigation. He also suggested that the state Registry of Vital Records and Statistics would be more likely to purse any violation of state law involving marriage licenses.

Coakley -- whose district includes Somerville, where city officials last week were trying to determine whether they would require same-sex couples to note their residency on marriage license applications -- said her focus would remain on "keeping the streets safe."

She said many clerks may remain confused about how to uphold the law and said it would not be "appropriate" to hold them liable for violations.

"I don't think it's appropriate to give concern to clerks who are already admittedly confused about the directions they've been given" from local officials and the Romney administration, she said.

Norfolk County District Attorney William R. Keating said he believes the 1913 law, which was born in part as an effort to enforce interracial marriage bans, has been nullified by the 1967 US Supreme Court decision Loving v. Virginia, which struck down interracial marriage bans.

"The Loving case wiped out those interracial statutes," Keating said.

"If you look at that initial 1913 statute and you look at what that law was intended for, there would be no basis that I can foresee to bring any kind of criminal complaint against a clerk."

Keating added, "Unless we find anything to the contrary, it's something that can't be utilized."

A third Democratic district attorney, David F. Capeless of Berkshire County, said he would review any complaints that are brought to him, but said the issue was not a top priority for his office.

Capeless said clerks could only be held liable if they "knowingly" issue a marriage license to an out-of-state gay couple, a standard that some legal experts say would be hard to prove.

In any case, Capeless said, the issue "certainly would not be a priority."

He said he would remain focused on a "rising tide of drugs, violence, gun play, and protecting the children and elderly."

"Those are our priorities," Capeless said.

"And I feel confident that the public feels that's where our priorities should be."

Eric Fehrnstrom, a spokesman for Romney, declined to respond to the district attorneys but pointed to a footnote in the original gay-marriage decision written last November by Supreme Judicial Court Justice John M. Greaney. Fehrnstrom said Greaney's footnote shows the 1913 law forbids out-of-state gay couples from marrying here.

The footnote, in the a concurring opinion with majority, says, "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, is precluded by the provisions of" state law.