Town clerks in Massachusetts say they are still waiting for legal guidance from either the attorney general or the governor on whether they can issue marriage licenses to same-sex couples who come to Massachusetts from out of state. A 1913 law forbids town clerks from issuing marriage licenses "if such marriage would be void if contracted" in the couple's home state.
Thirty-nine states have so-called defense of marriage laws on the books that ban same-sex marriages. And no states officially sanction gay marriage, though individual officials in some states have decided recently to perform wedding ceremonies for same-sex couples. "Even Vermont only has civil unions," said Linda Hutchenrider, president of the Massachusetts Town Clerks' Association and the town clerk of Barnstable. "As the law is written now, anyone outside the jurisdiction who cannot be married legally there can't be married here."
The clerks' association asked Attorney General Thomas Reilly on February 24 for a legal opinion on the law, but a lawyer in Reilly's office responded that the association wasn't in a position to ask for a formal legal opinion. Only state officials, district attorneys, and the legislature can ask for such opinions, the lawyer wrote, according to The Boston Sunday Globe.
Attorney Stephen G. Roche, who represents the clerks' association, had spoken with Gov. Mitt Romney's office and was told the governor's staff would render an opinion soon. "Town clerks across the state would like this issue addressed with a sense of urgency," Roche said. But Romney spokesman Eric Fehrnstrom issued a statement saying that as long as the legislature is still considering changes in the law, it would be too early to provide any advice.
The legislature has been embroiled in a debate over a constitutional amendment banning gay marriage. It is slated to take up the issue again this week.
Mary Bonauto, the attorney who represented seven same-sex couples in the supreme judicial court case that ruled it unconstitutional to bar same-sex couples from marriage, said the provision in the statute should not become an obstacle to out-of-state couples. "We assume the town clerks are obliged to follow the same procedures they have always followed and there should not be a new set of rules applied to the marriages of same-sex couples," she said.
But her organization, Boston-based Gay and Lesbian Advocates and Defenders, has issued a warning on its Web site to out-of-state gay couples who wish to get married in Massachusetts: "Please stay tuned. The bottom line is that it is going to take some time to sort out these issues, and non-Massachusetts couples should, for the moment, adopt a wait-and-see attitude."