May 28, 2004  |  By: JOE CREA  | COMMENTS     

BOSTON — Attleboro and Fall River remain the only Massachusetts cities continuing to issue marriage licenses to out-of-state gay couples despite orders from the governor and attorney general for town clerks to obey a law that forbids the state from granting marriage licenses to couples who cannot legally marry in their home state.

Provincetown, the gay-friendly beach town, officially ceased issuing marriage licenses to out-of-state couples this week but vowed to continue fighting the statute they say is “unlawful and unconstitutional.”

Other cities that have issued licenses to out-of-state same-sex couples, including Worcester, Somerville and Springfield, ended their protests last week. The mayor of Somerville, Joseph A. Curtatone, left open the possibility that he may challenge Attorney General Thomas F. Reilly’s orders to end the practice.

“We are looking at all our legal options,” said Mark Horan, a spokesperson for Curtatone.

At the center of the issue is a rarely enforced 1913 law known as the “reverse evasion” law that prohibits Massachusetts from granting licenses to out-of-state couples whose marriages are not legal in their home state.

Last week, Reilly, a Democrat and likely gubernatorial challenger to Romney, said marriage licenses issued to out-of-state couples would not be registered by the state and will be declared void.

Reilly’s understanding of the law contradicts a comment he made during an April news conference when he said out-of-state gay couples who live in one of the 12 states and the District of Columbia that do not have laws on their books expressly prohibiting same-sex marriage would be able to marry in Massachusetts.

Corey Welford, a spokesperson for Reilly, said that the attorney general had not changed his opinion.

But Reilly’s contrasting statements have brought more confusion than resolution to several town clerks.

Fall River City Clerk Carol Valcourt said with the guidance of her legal department, the city is following Reilly’s original interpretation of the 1913 statute and will continue to issue licenses to any gay couple, so long as they attest that they know of no legal impediment to their marriage back home.

“We are verifying that [marriage license applications are] coming from a non-DOMA state,” Valcourt said, referring to the 12 states and D.C. that have not passed a so-called Defense of Marriage Act, “and that there are no specific laws in the state preventing the marriages from being recognized.”

She added that of the 19 marriage licenses issued to same-sex couples since last Monday, one was issued to an out-of-state couple. The couple resides in New Mexico and the state has no law preventing it from recognizing same-sex marriages, Valcourt said.

Attleboro City Clerk Susan Flood told the Associated Press that the city solicitor authorized her to issue licenses to gay couples from the 12 states that have not adopted DOMA laws banning such marriages. According to Flood, the city has issued licenses to about eight couples, most of them from Rhode Island.

1913 law debated
Ambiguity over the 1913 statute persists. Last week, Norfolk County District Attorney William R. Keating said he would not prosecute town clerks for defying the 1913 statute because the law was enacted in part to prevent interracial marriages and has since been nullified by the 1967 U.S. Supreme Court decision, Loving vs. Virginia, which struck down interracial marriage bans.

“This 1913 law does not have the force of law,” said Dave Traub, a spokesperson for the Norfolk district attorney’s office. “It specifically refers to intermarrying, the joining of people across races. That statute was passed explicitly as a racial statute and it has since been nullified by Loving vs. Virginia when the high court struck down the law as being ‘repugnant’ of the 14th Amendment to the Constitution.”

Chapter 207, Sections 11, 12, 13 of the General Laws of Massachusetts state, “No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction.”

But Section 12 adds that whomever has the authority to issue the license, “shall satisfy himself, by requiring affidavits or otherwise, that such person is not prohibited from intermarrying by the laws of the jurisdiction where he or she resides.”

Opponents of the 1913 law, like Norfolk District Attorney Keating, have seized on Section 12 — particularly the term “intermarrying” — as proof that the law had racist origins.

But according to Reilly, the statute — while rarely enforced — is still the law and was not created out of animus toward interracial couples.