Apr 30, 2004  |  By: JOE CREA  | COMMENTS     

BOSTON — Citing a 1913 law that prohibits Massachusetts from marrying an out-of-state couple whose marriage would not be recognized in their home state, Republican Gov. Mitt Romney announced last weekend he will enforce the old statute unless governors and attorneys general in any of the other 49 states or the District of Columbia say they will permit Massachusetts to marry a gay couple from their state.

It is not clear how the attorneys general of Maryland and Washington D.C.’s equivalent — the mayor’s corporation counsel — will respond to Romney’s pronouncements.

“Massachusetts should not become the Las Vegas of same-sex marriage,” Romney told the New York Times last week. “We do not intend to export our marriage confusion to the entire nation.”

The obscure 1913 law, known as the “reverse evasion” statute, bans Massachusetts from granting marriage licenses to out-of-state residents who cannot legally marry in their home states. According to Romney’s interpretation of the law, the statue applies to residents in the remaining 49 states and the District of Columbia since no other state expressly permits gay marriage.

Romney said his administration will soon send out letters to the 49 attorneys general asking them if gay couples from their state can wed in Massachusetts.

Tony Bullock, communications director for D.C. Mayor Anthony Williams, confirmed that the mayor has received a legal opinion from Robert Spagnoletti, the city’s corporation counsel, on whether D.C. law permits the city to recognize same-sex marriages performed elsewhere. He said that the document would be made public in the next few weeks.

“I don’t see anything to prevent D.C. gay couples from going up to Massachusetts and coming back here,” Bullock said. “At some point, the mayor and Mr. Spagnoletti agree that this question of recognition will face the District government. That’s the basis for Spagnoletti’s research. He shared his legal opinion with the mayor, and I suspect that at some point, in the next week or two, the mayor and city administrators will determine what the position of the city is.”

Kevin Enright, spokesperson for Maryland Attorney General J. Joseph Curran, said he was working on finding an answer as to whether or not the state would recognize a Maryland gay couple’s Massachusetts marriage license. While Maryland does not have a Defense of Marriage Act and does not constitutionally ban gay marriage, the state’s Family Code does not provide explicitly for same-sex unions.

Calls to the office of Virginia Attorney General Jerry Kilgore, a conservative and longtime opponent of gay rights, were not returned by press time. Dyana Mason, executive director of Equality Virginia, the statewide gay rights group, noted that Virginia already bans the recognition of same-sex marriage “and the incidents of such a marriage celebrated in another jurisdiction.”

Clerks urged to comply with law
Evan Wolfson, executive director of Freedom to Marry, said the 1913 statute was used largely to prevent interracial marriages. He criticized Romney for dusting off the old statute.

“For him to resurrect this artifact from the deepest days of discrimination is completely inconsistent with the Massachusetts Constitution,” Wolfson said. “It’s a statute that was a part of a campaign to discriminate against interracial marriage.”

While trying to stop out-of-state gay couples from applying for a Massachusetts marriage license, Romney’s staff has also instructed city and town clerks to resign if they are not comfortable performing same-sex wedding ceremonies, which are set to begin on May 17.

Meanwhile, the executive branch has ordered changes to the state’s marriage application, replacing “bride” and “groom” with “Party A” and “Party B,” and adding new questions to the forms asking couples for “evidence of where a person resides and intends to continue to reside.”

The new form also asks if couples have ever joined together in a civil union or domestic partnership and says that the marriage of an out-of-state gay couple that does not intend to move to Massachusetts will be “null and void.”

While officials in the Romney administration say the governor is on firm legal footing with his interpretation of the law, the application of the old statute could open the state up to a potential lawsuit.

Boston College law professor Charles H. Baron said that based on federal and state legal precedents, a law that is discriminatorily applied, even if it is not intended to discriminate, could conflict with both the Massachusetts and U.S. constitutions.

“Courts could decide on the basis of its own precedent that a law being applied with animus, with a direction to oppress a particular class, is unconstitutional,” Baron ...