Two more Massachusetts city clerks confirmed Tuesday that they are issuing marriage licenses to out-of-state gay couples, even as three other clerks temporarily stopped the practice under pressure from the governor and attorney general. Attleboro city clerk Susan Flood said that the city solicitor authorized her to issue licenses to gay couples from the 11 states that have not adopted "defense of marriage" laws that ban same-sex weddings. To date, Attleboro has issued licenses to about eight couples, Flood said, most of them from Rhode Island. Fall River city clerk Carol Valcourt said that the city's law department had made the decision, prior to the legalization of gay marriage on May 17, that all comers would be given licenses as long they attested that there is no legal impediment to their marriage. One of the 19 marriage licenses issued in Fall River has been to an out-of-state couple, Valcourt said.
Gov. Mitt Romney, a Republican, has stated that no gay couples from other states can marry in Massachusetts because of a 1913 statute, which prohibits unions that would not be legal in a couple's home state. At Romney's urging, Atty. Gen. Thomas Reilly, a Democrat, has ordered clerks in Provincetown, Somerville, Springfield, and Worcester--four cities that had vowed to defy Romney's order--to cease and desist from issuing marriage licenses to out-of-state couples. All except Provincetown, a gay tourist mecca at Cape Cod's tip, have stopped issuing licenses to nonresidents, at least temporarily, while they explore legal options. Reilly's office said Tuesday that he would take no action against other cities and towns unless he received referrals from the administration.
While Romney and Reilly have said that officials in only four cities and towns were failing to comply, there has been no independent review of the practices in the state's 351 municipalities. "There's a presumed widespread compliance, but if there's a rogue clerk out there who's doing it below the radar, you're not going to find out about it until some future date," said attorney Paul Martinek, editor of Lawyers Weekly USA. Romney and Reilly have not said what legal action they would pursue against clerks who continued to defy the state, but legal experts say Reilly could seek a court injunction ordering them to stop.
Somerville mayor Joseph Curtatone said Monday that he had temporarily suspended out-of-state marriages and was asking Reilly for clarification on how to proceed. "As matter of law and policy, I believe the Somerville city clerk has acted correctly in issuing these licenses," Curtatone wrote in his letter to Reilly. He also said that the city was "disinclined" to order the clerk to permanently cease and desist. Worcester clerk David Rushford also stopped marrying nonresidents while a city lawyer prepared a legal brief arguing that Rushford has been within the law by granting licenses to out-of-staters. "The city clerk, after consulting with me, has decided to comply for the time being with the direction contained in the attorney general's letter until the legal issues get sorted out," Worcester city solicitor David Moore said. Springfield clerk William Metzger also said he would comply with the ban on out-of-state marriages.
The 1913 law cited by Romney in denying licenses to out-of-state couples was a segregation-era statute that was intended to address nonuniformity in marriage laws from state to state, including differences in the interracial marriage laws. Critics have vowed to mount a court challenge to the law.