The politics of the gay marriage debate in Massachusetts have now moved from the legislative branch to the executive branch, with Gov. Mitt Romney and Atty. Gen. Thomas F. Reilly sparring over whether the state should ask its highest court to delay same-sex marriages until voters can cast ballots on a constitutional amendment banning them. Following the state legislature's approval Monday of a proposed amendment to the Massachusetts constitution banning gay marriage but allowing civil unions, Romney called on Reilly to ask the supreme judicial court for a stay on its mandate that same-sex couples be issued marriage licenses beginning May 17, at least until state residents get a chance to vote on the amendment, which would be November 2006 at the earliest. On Tuesday, Romney asked Reilly to appoint a special assistant to handle the request if the attorney general himself were unwilling. Romney said he wants to prevent any confusion that could ensue if gay marriages take place beginning in May and are then outlawed by voters--a separate question, he argued, from the issue of the constitutionality of gay marriage as ruled on by the high court in November.
But Reilly declined, arguing that the court had made itself clear in its original November decision and in an advisory opinion issued in February. "I was struck by the fact that [Romney's] letter did not set forth one single legal argument," said Reilly, whose office represented the state in the landmark same-sex marriage case. "The arguments the governor makes are political arguments. The governor's job is to implement the law of the state, and I expect him to do that." That left a Romney aide fuming: "Under our constitution, the attorney general is the gatekeeper to the supreme court. By his action, he's closed the gate on the people of Massachusetts," Romney communications director Eric Fehrnstrom said Tuesday. "His suggestion that it is the job of the client to make the legal argument is ridiculous. There are plenty of lawyers to make legal arguments. What we need is for Tom Reilly to appoint one of them to represent us."
Several experts on the role of attorneys general in state government said Tuesday that Romney has no power to circumvent Reilly, a Democrat viewed as a possible gubernatorial opponent to Romney in 2006. "The law in Massachusetts is clear that the attorney general is the chief law enforcement officer of the commonwealth," said Boston attorney Robert Sherman, who served as special counsel to Reilly's predecessor. "It's the attorney general who makes the decision and not the governor." Romney reiterated his commitment Tuesday to abide by the law of the land as it exists on May 17 and said he would not order city clerks to defy the court edict. There is a section in the state constitution that gives the governor the power to weigh in on the "causes of marriage," but Romney said he had not
explored whether this clause gives him any legal power to stop same-sex marriages. Romney could potentially sue the attorney general's office, arguing that Reilly does not have the legal power to deny his request. Similar lawsuits have been filed in the past but have been rejected by the supreme judicial court.
Several lawmakers are also seeking ways to avoid the legalization of same-sex marriage in May. Rep. Paul Loscocco (R-Holliston) said Tuesday that he is preparing a bill that would abolish the state's civil marriage law, replacing it with civil unions for both gay and straight couples. Under his bill, which could
potentially take effect before May 17, marriage would become solely a religious institution. He said he wants to craft the language in a way that would ensure that straight couples who enter into these civil unions would continue to have all the federal benefits of marriage and be recognized as married in other states.