State May Limit Same-Sex Marriages

Their plan was to fly here May 17 and take out a marriage license. After the required three-day waiting period, Matt Foreman and Francisco de Leon intended to exchange wedding vows in Cambridge, then head home to New York.

But Gov. Mitt Romney has ordered city clerks to enforce an obscure 1913 law that prohibits out-of-state couples from marrying in Massachusetts if their home states do not permit them to marry. And that has put everything on hold for Foreman and De Leon -- along with thousands of other gay and lesbian couples from around the country.

In a pair of rulings in November and January, this state’s highest court mandated same-sex marriage to begin May 17. Last month, the state Legislature passed a constitutional amendment limiting marriage to a union between a man and a woman. But that measure cannot take effect before November 2006 -- the earliest opportunity for voters to decide on the amendment.

Unable to block Massachusetts from becoming the first state to legalize same-sex marriage, the Republican governor has ordered city and town clerks to demand proof of residency from gay and lesbian couples who seek marriage licenses.

Romney also will send a letter this week to governors and attorneys general in 49 states informing them of the restrictions implicit in a law written at a time when Massachusetts permitted interracial marriages -- but many other states did not. Under Romney’s interpretation, the proscription from 1913 extends to states that do not allow same-sex marriage.

“It is our view that gay marriage is not legal anywhere in the United States except Massachusetts, starting on May 17,” said Shawn Feddeman, the governor’s press secretary. “The 1913 law is actually printed right on the marriage form.”

A spokesman for state Atty. Gen. Tom Reilly said Tuesday that the law was still valid.

A Democratic state legislator, Rep. Robert Spellane of Worcester, has filed a bill to repeal the 1913 law. But Charles Rasmussen, chief of staff to state House Speaker Thomas M. Finneran, said Tuesday, “In all honesty, I don’t think anything on gay marriage will get through the Legislature before the May date.”

Romney, a foe of same-sex marriage, earlier tried to force the state’s highest court to stay its decision legalizing same-sex marriage in Massachusetts. But that effort faltered, as did attempts by others to block gays and lesbians from marrying here.

With less than three weeks remaining before the same-sex weddings begin, Romney sent word to the 1,000 justices of the peace in Massachusetts that they would be required to perform gay and lesbian weddings.

Feddeman said the governor’s action did not represent an about-face in his position on same-sex marriage. “The governor does not agree with the [Supreme Judicial Court] decision,” she said. “But he has great respect for the law.”

Justices of the peace, who are appointed by the governor, are required to solemnize any marriage, she said.

“If a justice cannot comply, then we would expect him or her to step down,” Feddeman said.

Justices of the peace receive no salary, but are paid $75 to $125 per wedding, said Peter Ardagna, treasurer of the Massachusetts Assn. of Justices of the Peace. He said his organization had agreed that starting May 17, wedding ceremonies would not necessarily include the words bride or groom.

In same-sex ceremonies, he said, “what we are going to say is: ‘I now pronounce you married under the laws of the commonwealth of Massachusetts.’”

Ardagna said Massachusetts justices of the peace would be required to marry any couple that presented a valid marriage license.

“Even if we know the couple does not reside in Massachusetts, it is not up to us to act as marriage police,” he said. “That is for the [city and town] clerks to take care of.”

But requiring couples to produce driver’s licenses, utility bills or other proof of state residency represents a change, said Lisa Thomas, assistant city clerk of Worcester.

“We currently don’t ask couples who come to our window where they live,” said Thomas. “They come from out of state, out of the country. They could be living in their car. As long as they are getting married in Massachusetts, that is all we care about.”

Thomas said she was not certain whether she and City Clerk David Rushford would begin requiring heterosexual couples as well as same-sex couples to furnish proof of residency. Some city clerks have said they will refuse marriage licenses to out-of-state couples if that is what the law requires. The issue is expected to be discussed at a series of workshops for city and town clerks in early May, at which instructions for same-sex marriage licenses will be dispensed.

Thomas said Worcester already had changed its marriage forms to read “Spouse One” and “Spouse Two,” as opposed to bride and groom.

She said her office would open half an hour early on May 17 and would not close “until everyone who has come to the window that day” has received a license.

“We expect to be besieged, to put it mildly,” she said. “People have been waiting so long for this -- and at this point, some fear seems to have set in. Some people feel that if they don’t do it quickly, it won’t happen at all.”

Foreman, executive director of the National Gay and Lesbian Task Force, said that after 14 years together, he and De Leon considered themselves married, and even wore wedding rings.

“But we don’t have the rights, and that’s what we need,” he said. The couple considered going to Canada to get married. “But we felt we wanted to get married here in the United States with no legal cloud,” he added.

With the restrictions announced by Romney, “it’s one more legal hurdle,” Foreman said. “At this point, I’m not sure what we’re going to do.”