AG asks end of out-of-state marriage licenses

Attorney General Thomas F. Reilly sent letters yesterday to four communities demanding that they stop issuing marriage licenses to gay and lesbian couples from out of state, taking the first step toward a court order blocking the clerks from allowing out-of-staters to marry.

Reilly's ''cease and desist" letters to Provincetown, Springfield, Somerville, and Worcester were sent a day after Governor Mitt Romney asked the attorney general to enforce a controversial 1913 law making a Massachusetts marriage void if that marriage would be void in the couple's home state.

''In order to avoid enforcement action, we urge you to provide us immediately with an explanation of how the clerk's actions are consistent" with the law, the letter read. ''In the meantime, until we receive a satisfactory explanation, we ask that you advise your clerk's office to cease and desist from such actions."

The attorney for Provincetown, Gretchen Van Ness, told the attorney general's office that the town would not change the policy on marriage licenses before a meeting of its Board of Selectmen on Tuesday night.

''Shame on Reilly," said Mary-Jo Avellar, one of the five selectmen who will decide on the matter. ''He's supposed to be protecting all the people, not just the straight ones."

Avellar said she will probably vote to defy Reilly's order. ''My preference would be to fight him, absolutely," she said.

The attorneys for Somerville said they had not yet decided how they will respond to the letter.

''We're weighing our legal options over the weekend," said Mark Horan, spokesman for the mayor, Joseph A. Curtatone. ''We are still very committed to trying to find a way to treat same-sex couples the same way we treat heterosexual couples."

Springfield had already suspended its practice of giving licenses to out-of-state couples earlier this week, anticipating action by Reilly. Worcester's clerk, David J. Rushford, did not return calls yesterday.

Reilly did not send letters to Attleboro and Fall River, two other cities that are welcoming marriage license applications from gays and lesbians from out of state.

If the municipalities do not comply with Reilly's order, he will probably seek an injunction against them. That will take the dispute over the 1913 law into the courts. It is a battle for which gay rights advocates have been steeling themselves for months, though they had been preparing to raise it themselves, rather than responding to actions by the governor and attorney general.

Reilly acted after Romney demanded copies of marriage license applications earlier this week from the four communities and sent 10 of them to the attorney general as evidence that the clerks were defying his instructions not to issue them to same-sex couples from outside Massachusetts.

Romney says he does not want to export gay marriage to other states, many of which have explicitly banned same-sex marriage. A gay marriage opponent, Romney says that same-sex unions undermine the traditional family.

Gay marriage supporters say he is basing his argument on an archaic law that has been inconsistently applied. Using it to exclude a class of gays and lesbians from marriage in Massachusetts contradicts a November Supreme Judicial Court ruling granting them the right to marry, some lawyers say.

''Obviously I'm disappointed," said Mary Bonauto, civil rights project director of Gay & Lesbian Advocates & Defenders, which brought the Goodridge case that led to the SJC decision. ''I think it's a shame that he is backing the governor on this extreme interpretation of the law. But when all is said and done, we just think he is dead wrong.

''They're proceeding as though the Goodridge case was never decided," Bonauto said. ''The one thing I'd agree with him on is, this needs to be sorted out in court."

The attorney general's letter laid out his rationale for enforcing the law, answering some of the arguments made by same-sex marriage supporters.

Those supporters have argued that the law should not be applied because it was enacted in part to uphold other states' bans on interracial marriage. Yesterday, however, the Globe reported that gay marriage activists have conceded that the law could have been written for a variety of reasons. For example, the law could have been written to block spouses from crossing state lines to get divorced.

''This is pretty clear," Reilly said yesterday, two hours before the letters were sent. ''The [SJC] decision is relevant to residents of Massachusetts and people from other states who come to Massachusetts and intend to reside here; it's limited to that . . . So with respect to the law, we will enforce the law."

Romney has said the state registrar will not record the marriage licenses of gay couples who are from out of state and do not plan to move to Massachusetts. That, he has said, will make future licenses and those already granted invalid.

Reilly said he would probably not seek penalties against the clerks, who could be fined from $100 to $500 or jailed for up to one year, or both, for knowingly issuing licenses to applicants who do not qualify for them under state law. Nor would he target the couples themselves, he said.

His office argued, as Romney has, that their marriages will be invalid under the 1913 law. Reilly, like Romney, said he sought to protect out-of-state couples from disappointment.

''It's important not to mislead people from out of state . . . thinking they are going to enter into a valid marriage," said Reilly, who may run for governor against Romney in 2006.

Reilly has said he believes that the 1913 law on residency bans marriage of couples from the 38 states that have a Defense of Marriage Act, which generally defines marriage as only between a man and a woman. By contrast, Romney has said the 1913 residency law affects all states, since none besides Massachusetts have declared gay marriage legal.

With yesterday's action, Reilly has aligned himself with Romney, though he took great pains yesterday to suggest he had had no choice but to enforce the law, repeatedly saying he was applying the law as it stands ''at this point."

A budget amendment to repeal the 1913 law was overwhelmingly approved by the Senate earlier this week, but its prospects are uncertain because House leaders do not want the contentious provision included in the budget negotiations.