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AG sees gay marriage limit

Says law bars most out-of-staters

Attorney General Thomas F. Reilly said yesterday that Massachusetts marriage law will forbid same-sex couples from at least 38 other states to get married here after May 17, when gay matrimony becomes legal.

Reilly, addressing the issue for the first time at a press conference yesterday, said a 1913 Massachusetts law prevents out-of-staters from getting married here if they are not eligible for marriage in their home state. The law was originally written to block interracial marriages, but has gained new relevance since the state's high court legalized gay marriages on Nov. 18.

Even though couples from coast to coast are readying plans to be married here this summer, Reilly said it was his opinion that the landmark court ruling applied only to Bay Staters and couples who live in states where no law expressly defines marriage as the union of a man and a woman. Currently, 38 states have Defense of Marriage Act laws, or DOMAs, that define marriage solely as a heterosexual institution, and others are debating such measures.

"In those states . . . where same-sex marriage is not lawful, [gay couples] are not entitled and cannot be lawfully married here," said Reilly, the state's top lawyer. "This [court] opinion is rather limited, in terms of Massachusetts residents who are entitled to these rights."

A spokesman for Governor Mitt Romney argued that gay couples from any state other than Massachusetts would not be eligible for marriage here, because gay marriage is illegal everywhere else.

Advocates on both sides of the gay marriage issue expect a legal fight on out-of-state applicants for licenses, so Reilly's pronouncement yesterday will hardly be the last word. Still, if only residents of Massachusetts and a few other states can obtain marriage licenses, the breadth of the Supreme Judicial Court ruling will be sharply limited from what was originally envisioned by gay-marriage supporters.

Since the Nov. 18 SJC ruling, town clerks in Boston and Provincetown, a gay vacation mecca, have reported fielding hundreds of calls from couples from many other states who hope to obtain civil marriage licenses this summer and beyond.

"We've been telling people that we don't know if people from out of state will be able to get certificates," said Aaron Leventman, Provincetown's assistant town clerk. "But people want to come down and try anyway."

Reilly said he could not offer legal advice to out-of-state same-sex couples, but suggested that the cost of the trip may not be worth it.

"I'm not in the position of giving private advice to people," Reilly said. "I can tell you that I think there are at least 38 states that, in one way or another, do not recognize same-sex marriage. They're not entitled to get married in the state of Massachusetts."

Currently, municipal clerks require couples seeking a marriage license to sign affidavits that their impending nuptials would be legal in their home jurisdiction. The clerks, in turn, submit that paperwork to the Massachusetts Registry of Vital Records, an executive registry under the control of Romney, an ardent foe of gay marriage.

Eric Fehrnstrom, Romney's communications director, said yesterday that same-sex couples will also be required to sign such affidavits after May 17. Fehrnstrom said the governor would probably forbid the issuance of licenses to same-sex couples from any other state.

"I'm not aware that gay marriage is legal anywhere," Fehrnstrom said. "If people were to come here, they would have to establish residency. I mean, we have people file affidavits now affirming that if they are from out of state, there's nothing in their home state that prohibits them from getting married."

Municipal clerks and justices of the peace said yesterday that they still hope to receive some form of official opinion on the issue before May 17.

"It's only a month and a half away, and clerks still aren't ready, because we have not received information or forms," said Barnstable Town Clerk Linda Hutchenrider, president of the state town clerks' association. "Everything is still up in the air."

Meanwhile, a top official with the Massachusetts Justices of the Peace Association said her roughly 500 members are also eagerly awaiting information, in part because many hope to avoid marrying same-sex couples. If forced, she said, more than a few will quit.

"We'd like to get some guidance from the state, but haven't been able to do that," said Constance Perron, vice president of the group and a former Beverly city clerk. "If that's the only option, to marry same-sex couples, then I think people will be leaving."

Perron added that a lawyer from Romney's office has agreed to meet with the association.

Reilly said he foresees little bureaucratic difficulty in upholding the 1913 law: "This can be done if people have the will to do it. And we will respect the law and implement the law. That's our job, whether or not we like the decision or not. My job is to enforce it, and that's what I'm going to do. [Romney's] job is to implement it."

Reilly added that clerks should receive a list of states with DOMA laws to make the process smoother. "The clerks will have the information to make the decisions they need to make," he said. "This can be done."

On Feb. 24, Reilly's office declined to offer a legal opinion on the 1913 law for the state's town clerks' association, saying he could only provide opinions to state agencies or officials.

Now that Reilly has broken his silence on the issue, opponents of same-sex marriage were quick to cheer him on.

"I think it is a wise decision to respect other states that have established a clear definition of marriage," said Ronald A. Crews, president of the Massachusetts Family Institute, which has spearheaded the fight to ban same-sex matrimony here. "There was concern, particularly in those states with DOMAs."

But Laurence Tribe, a constitutional scholar at Harvard Law School who supports same-sex marriage, said yesterday that the issue is cloudier than Reilly or Romney let on and that legal challenges are sure to result if gay couples from other states are refused marriage licenses.

Because the US Constitution forbids discrimination against any class of citizens, Massachusetts officials may be compelled to ignore DOMA laws in other states, Tribe said.

"Suppose another state has not gotten rid of its law disallowing interracial marriage; such laws are clearly unconstitutional," Tribe said. "So if a couple comes here to Massachusetts and is told you cannot get married here, the couple would respond, `That law is unconstitutionally discriminatory.'

"Some couples are more interested in marriage than a lawsuit, but, surely, I would be surprised if there were not challenges," he said.

Recently, Attorney General Eliot L. Spitzer of New York announced that his state, which has no DOMA law, would recognize same-sex marriages conducted elsewhere.

Complicating matters, the US Constitution's "full faith and credit" clause mandates all states to honor legal covenants from the other states. Ever since the SJC legalized gay marriage, opponents have feared that the ruling would undermine DOMAs in the states and at the federal level, one reason why Crews and others have hoped that Reilly and Romney would uphold the 1913 Massachusetts law.

Reilly is not the only influential lawyer to come to such an opinion.

In a footnote buried in a concurring opinion accompanying the SJC's gay marriage ruling, Justice John M. Greaney suggested that out-of-staters will not be able to get married in Massachusetts: "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" Chapter 207 of the Massachusetts General Laws, where marriage laws are laid out.

Crews, however, said he expected legal challenges.

"We may have to get involved in that," Crews said. "We have attorneys who have been working with us all along to step in if needed."

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