Stay by SJC called unlikely

Legal specialists said yesterday that Governor Mitt Romney would probably not succeed in persuading the Supreme Judicial Court to stay its historic decision legalizing gay marriage.

Romney confirmed yesterday that he was considering asking for a stay as the Legislature and voters consider a proposed November 2006 ballot initiative that would overturn the SJC's ruling. The SJC ruling calls on the state to begin issuing marriage licenses to same-sex couples on May 17. The Globe reported the strategy Friday.

Lawyers watching the debate said that it was well within his rights to request a stay, but most agreed there is little legal precedent, in Massachusetts and across the nation, for such a delay.

"You have four members of the SJC who seem to feel pretty strongly that this is a fundamental right," said Paul Martinek, a lawyer and editor of Lawyers Weekly USA. "Why should they make it any easier for the people who are lambasting their decision to get around their decision?"

Andrew Koppelman, a professor of law and political science at Northwestern University School of Law, said: "Any judicial decision that hands down a rule of law could be overruled by a constitutional amendment. . . . On this theory, any judicial decision should be stayed for how long?"

Romney and top lawmakers have been under pressure from gay-marriage opponents to address what House Speaker Thomas M. Finneran called legal chaos that could occur if lawmakers approve a constitutional amendment banning gay marriage and if towns and cities begin issuing licenses to gay couples on May 17. Voters could consider the proposed amendment no earlier than November 2006, meaning that Massachusetts would allow gay couples to marry for 2 1/2 years and then reverse course.

The website for the Coalition for Marriage, the group leading the fight against gay marriage in Massachusetts, urges people to ask Romney to call for a stay "until the people have spoken in 2006."

"The judiciary has spoken; the Legislature has spoken about upholding the definition of marriage," said Ron Crews, the spokesman for the Coalition for Marriage. "Now we need the third branch of government to break the tie. We don't live in a judicial oligarchy,"

Yesterday, Romney narrowed his legal options, saying he would "not sign an executive order which is outside the bounds of the law."

"Whatever I would do would be within the guidance of our constitution and the statutes as they exist as of May 17," he said. "But between now and then there could be action taken by the Legislature that would affect that."

His reference to an executive order appears to address the suggestion by some legal observers that Romney could sign an order to block issuance of marriage licenses to gay couples. His suggestion that he would wait until the Legislature acts leaves open the possibility he would seek a stay if lawmakers advance the proposed constitutional amendment.

Romney would not elaborate, other than to confirm that he was mulling a stay. He repeatedly said yesterday that he would act "within the bounds of the law" and also took a swipe at other cities, such as San Francisco, that have issued marriage licenses to gay couples in apparent violation of state law.

"We're not going to be in a setting where people are taking the law into their own hands, whether that [be] mayors, governors, legislators, or the like," Romney told reporters.

The governor, a firm opponent of gay marriage, made his remarks the day after legislators met in a Constitutional Convention and gave preliminary approval to a proposed amendment that would ban gay marriage. The House and Senate return March 29 to resume their joint session and to take a final vote. The proposal would need approval in the 2005-2006 legislative session before it could appear before voters on the November 2006 ballot.

Lawyers following the issue say one precedent for a potential stay of the SJC ruling emerged: Hawaii, where the state Supreme Court startled the country in 1993 by reinstating a lawsuit filed by three same-sex couples denied marriage licenses. In that case, the Hawaii Supreme Court sent the case back to a lower court judge who ruled that gay couples could marry, but he stayed his decision until the case could be reviewed by the state Supreme Court.

In a 1998 referendum, voters approved an amendment to the state constitution, limiting marriage to the union of a man and a woman. And the following year, the state Supreme Court ended the legal case, declining to order marriage licenses to same-sex couples, saying the issue had been decided by voters.

Yesterday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, argued that Romney's best chance to get a stay would be to argue that allowing gay couples to marry beginning May 17, when voters could end the practice 2 1/2 years later, would cause irreparable harm by putting a cloud over the marriages.

But Tribe said he doesn't think the SJC would buy that argument, because it would be a greater harm to postpone gay marriage if the amendment is not approved by voters. It would not be known at the time of the stay request if the amendment would be eventually approved.

"Here, the balance clearly goes the other way," he said. "If the amendment fails, the delay of marriage to people will be two years of married life that they will have lost forever."

Arline Isaacson, the cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, said that if Romney did seek a court stay, it would be comparable to the efforts of Southern governors to block integration of public schools and universities.

"He will make himself in history the equivalent of the Southern governor standing in the school house door with his arms crossed saying you can't come in," Isaacson said. "That's how he will be viewed in history. What a pitiful legacy."

Eric Fehrnstrom, Romney's communications director, said Isaacson's remarks reflected the emotions involved in the debate. "We understand there are strong feelings on both sides of the gay- marriage issue," he said. "Ultimately, the governor wants the people to decide the issue. The people of Massachusetts are fair and tolerant."

Around the state, the clerks who issue the licenses and some of the couples who want them are watching the debate closely, but they say they still plan to carry out the SJC order on May 17 regardless of what Romney does.

Linda E. Hutchenrider of Barnstable, president of the Massachusetts Town Clerks' Association, said clerks would be ready to issue same-sex licenses in May, irrespective of the Legislature's final vote on the amendment.

"Nothing that they did last night has changed what the Supreme Judicial Court stated," she said. "We stand ready to make it work."

She complained that the Department of Public Health has not distributed marriage forms for same-sex couples, or issued any directives since last November, when it warned clerks not to issue same-sex marriage licenses before May 17.

"We're hoping they'll give us some information and guidance," she said. "I would be embarrassed if I had to pass out a form that had bride on one side and groom on the other."

Romney's administration plans to provide instructions to city and town clerks, after researching legal questions including one that has arisen about the legality of issuing licenses to out of state couples. "We're all going to have to have a little patience," Romney said.

Jim Fauntleroy, 42, a computer programmer from Dorchester, has arranged a same-sex Quaker marriage in Beacon Hill for August. But he still spent Thursday on the third floor of the State House, singing protest songs until 6 p.m.

The Legislature's vote and Romney's possible attempts to delay implementation of the court's decision will not affect his religious ceremony with his partner, Eric Chappell, 37. But Fauntleroy said he also hopes to register with the state.

"The court's decision was that the right exists," he said. "It's not as if they were unaware of the constitutional process."

Globe correspondent Benjamin Gedan contributed to this report.