Massachusetts clerks challenge governor on gay marriage

An order to city clerks by Massachusetts governor Mitt Romney and state attorney general Tom Reilly to uphold a 1913 state law banning marriages for out-of-state gay couples is a violation of the clerks' oath of office, say 13 city and town clerks who are taking the historic step of asking the state supreme judicial court to back them up. The clerks filed a brief with the court on Friday, appealing a lower court ruling that held that the local officials have no right to challenge orders of state officials on constitutional grounds. "We have taken an oath to uphold the constitution of Massachusetts," said Catherine Flanagan Stover, clerk of the town and county of Nantucket. "The SJC has already said that, within the commonwealth, discriminating against gay and lesbian couples seeking to marry violates the constitution. We believe the governor's orders put us in the position of violating our oath of office. We are asking the SJC to clarify the law so that clerks are not put in that position." According to the American Civil Liberties Union, the clerks challenging the governor's directives are from Provincetown, Somerville, Worcester, Acton, Burlington, Cambridge, Marblehead, Nantucket, Northampton, Plymouth, Sherborn, Westford, and Rowe, representing a broad cross-section of Massachusetts cities and towns. The legal appeal by the clerks demonstrates that the lesbian and gay couples who filed a separate challenge to Romney's actions have support from the very officials most knowledgeable about the enforcement of the state's marriage laws over a period of decades--officials who can attest that the governor's new policy is discriminatory. The clerks' case also raises important and independent questions about the right of local officials to oppose orders from state officials that require them to carry out their duties in an unconstitutional manner. "We refuse to silently stand by and blindly carry out orders that are discriminatory," said David Rushford, clerk of Worcester. "If local officials had refused to carry out racially discriminatory state policies during the civil rights movement, we would have hailed their actions. Today, we have the opportunity to say no to discrimination in carrying out our duties, and we hope the court will recognize the importance of our ability to do that." After the supreme judicial court's ruling in the Goodridge case in November 2003, holding that gay and lesbian couples could not be denied the right to marry, the governor denounced the decision and instructed municipal clerks not to issue marriage licenses to any nonresident same-sex couples. The attorney general also threatened several of the clerks with legal action if they disregarded those instructions, action that could lead to penalties of fines and a prison sentence of up to one year. Both the governor and the attorney general have disavowed any intent to discriminate, although they are relying on a moribund 1913 state statute that had never before been invoked to prevent any out-of-state couple from marrying in Massachusetts.