Originally published on Advocate.com May 12 2004 12:00 AM ET
Out-of-state couples will be able to obtain marriage licenses in Provincetown. Mass., after the board of selectmen voted unanimously Monday to defy Gov. Mitt Romney's residency instructions, likely setting the stage for another gay marriage legal battle. Romney immediately issued a statement on Monday, threatening legal action against clerks who defy his interpretation of the law. The Provincetown board said that gay couples who live outside Massachusetts and have no intention of moving there will still be issued marriage licenses as long as they attest that they know of no legal impediment to their
union. Provincetown is a well-known vacation spot for gay couples. For months business owners and hoteliers in the seaside town have been preparing for an anticipated summer rush of gay wedding celebrants.
Romney's office has instructed city and town clerks around the state that out-of-state gay couples who do not plan to move to Massachusetts should be barred from marrying under a 1913 law that prohibits marriages that would be illegal in a couple's home state. "We are a nation of laws," Romney said in a statement. "If they choose to break the law, we will take appropriate enforcement action, refuse to recognize those marriages, and inform the parties that the marriage is null and void." Under state law, officials who issue a license "knowing that parties are prohibited" can face a fine of $100 to $500 or a prison sentence of up to a year. Romney said clerks should follow the 1913 law, regardless of their personal beliefs about gay marriage.
But attorney Mary Bonauto, who represented the plaintiffs--seven gay couples--in the landmark case that resulted in the legalization of same-sex marriage in Massachusetts, argued that it is Romney's personal opposition to gay marriage that has led to his broad interpretation of the 1913 law. If constitutional at all, Bonauto argues, the law would prohibit marriage only for those gay couples from states that have laws on their books declaring same-sex marriages "null and void." She estimates that only about 20 states have that type of law. "It's because of his personal beliefs that he is applying the law to all 49," Bonauto said. "There was a time when our state took the lead and refused to bow to the discriminatory laws of other states. But now I find it sad that the Massachusetts governor would penalize a town for recognizing that Massachusetts has no business denying marriage licenses to same-sex couples whether they are Massachusetts residents or not."
Romney spokeswoman Shawn Feddeman said an enforcement action "could include referring cases to the district attorneys or the state attorney general, depending on the circumstance." Huge crowds are expected May 17 in Provincetown, located at Cape Cod's tip. That is the day the November supreme judicial court decision legalizing same-sex marriage in Massachusetts takes effect. The legislature has given preliminary approval to a constitutional ban on same-sex marriage, but the measure must still receive additional rounds of approval from lawmakers during the 2005-2006 session and then by voters in November 2006. The constitutional amendment would simultaneously legalize civil unions.
Romney's chief counsel has told the state's city and town clerks that they must satisfy themselves of a gay couple's state of residence either by receiving documentary proof or relying upon the couple's sworn affidavit that they are Massachusetts residents or intend to be. If the couple writes on their marriage license that they are out-of-state residents, however, the license should be denied, said chief legal counsel Dan Winslow. The Provincetown board voted, however, that the town clerk could issue licenses to those couples as long as they signed the "Notice of Intent to Marriage" and attested that they knew of no impediment to their marriage in their home state. The decision was based on a legal opinion by town counsel John Giorgio, issued March 12. "In my opinion, it would be reasonable for the Town Clerk to rely upon an affidavit signed by the applicants that there is 'no legal impediment to the marriage,"' Giorgio wrote.