E-Mail This Article to a Friend State of matrimony (continued)

According to Romney’s spokesperson Feddeman, the administration has collected 11 replies, all of which confirm that gay marriage is illegal in those states. Some letters, such as the one from Rhode Island’s Lynch, as well as the one from New York attorney general Eliot Spitzer, indicate a willingness to honor same-sex marriages legally performed elsewhere. But those offers haven’t swayed the governor. Says Feddeman, "We did not ask whether states would recognize a Massachusetts [gay] marriage." Why not? "Under the [1913] law," she replies, "out-of-state same-sex couples are prohibited from marrying here unless it’s legal for them to marry in their home states."

Not surprisingly, legal experts take issue with this reading of the 1913 statute. Gay-rights advocates argue that the 1913 statute was rendered unconstitutional by the SJC’s November 2003 Goodridge ruling. That decision, they argue, effectively wiped out all marriage restrictions on same-sex couples in this state, including those from outside Massachusetts. Thus Romney and Reilly’s enforcement of the 1913 statute constitutes another form of marriage discrimination against same-sex couples. Out-of-state heterosexual couples are able to come here to get married, whereas gay and lesbian couples are not.

Even assuming the 1913 law is valid, attorneys contend, the governor and attorney general have managed to read its language incorrectly. Evan Wolfson, of the New York–based Freedom to Marry, maintains that they have wrongly interpreted the statute as saying it forbids same-sex couples from marrying here if they cannot marry at home. "The issue," he charges, "is a more extreme question of whether the states would declare these marriages ‘void.’" That word has a legal definition that basically means to proclaim one state’s legal act a non-act. "There’s a large presumption against voiding marriages in this country," Wolfson adds, which explains why the Rhode Island and New York attorneys general have suggested an openness to recognizing Massachusetts gay marriages. Even those states that have DOMAs wouldn’t necessarily nullify same-sex marriages performed elsewhere; according to GLAD, only 20 of the 38 DOMA laws explicitly render same-sex marriages "null and void."

Says Bonauto, "The governor is saying that gay marriage has to be authorized in a couple’s home state for them to marry here. We think the marriage would have to be considered void for the 1913 law to have any effect." GLAD has all but announced a lawsuit against the Romney administration. "Once the governor made his move," Bonauto says, "he invited litigation." She declined to elaborate on when GLAD might file suit, or whether it had enlisted any out-of-state gay couples as plaintiffs, simply stating, "We have strong legal arguments, and we’ll see what the courts have to say about the statute."

Clearly, there’s no shortage of nonresident same-sex couples willing to go to court to obtain a Massachusetts marriage license. Rhode Islanders Margolis and Gregory instructed the Fall River clerk to keep their unfinished paperwork on file just in case they call GLAD. "For me," Margolis says, "I feel like it’s my turn to stand up and go to bat on this issue." Similarly, Gilbody and Guerin, of Johnston, Rhode Island, anticipate contacting a lawyer if the governor tries to nullify their Massachusetts license because, Guerin says, "I like the idea of that piece of paper being recognized at some point."

"Definitely," Gilbody concurs. "That’s the whole point."

At the same time, the six communities that issued marriage licenses to gay out-of-staters don’t seem ready to relinquish the fight. The City of Worcester, for example, is working on a legal response to Attorney General Reilly, which will lay out why City Clerk David Rushford was correct in issuing marriage licenses to nonresidents. City Solicitor David Moore points to a little-known Massachusetts statute that enables a municipal clerk to ignore certain questions on the marriage-license application — including residency — if the clerk cannot ascertain the correct answer after a reasonable effort. Says Moore, "The clerk asks people to swear their residency in an affidavit, and that should be enough."

Provincetown and Somerville, meanwhile, look to be girding for court battles. Provincetown officials believe they have "very sound reasons for disagreeing with the governor’s interpretation of the 1913 law in the post-Goodridge world," according to their Boston attorney, Gretchen Van Ness, who declines to be specific about a possible lawsuit. Still, she says, "Officials feel their interpretation is right. And in general, when there’s a conflict on interpretation of law, a court has to determine the resolution." Likewise, Somerville mayor Joseph Curtatone has written a letter to Reilly expressing "overall disappointment" with how the attorney general has handled the 1913 issue, and asking him to clarify various legal questions. Mayoral spokesperson Mark Horan confirms that Somerville is mulling how to proceed in such a way that it can get back to issuing licenses to all couples. "Certainly," he says, "that is the city’s desire."

As gay-marriage advocates await resolution of the 1913-statute controversy, they aren’t relying on a Massachusetts victory to spread the movement nationwide. Indeed, national gay-legal-rights organizations — such as the ACLU and the Lambda Legal Defense and Education Fund — have proceeded down a deliberate path when pushing for civil-marriage rights for same-sex couples. The groups have carefully selected those states that seem most amenable to the issue and have filed lawsuits similar to Goodridge. Currently, gay-marriage cases are pending in New Jersey, New York, Washington, Oregon, and California. In each, the plaintiffs have sued after being denied marriage licenses at home. The legal strategy, attorneys say, represents a more ideal route toward marriage equality than couples filing lawsuits based on their Massachusetts gay-marriage licenses — partly because of Romney and Reilly’s obstructionism, and partly because of the anti-gay backlash that can arise when same-sex couples foist the issue on resistant states at the wrong time.

Gary Buseck, the legal director of Lambda Legal, finds the flap over gay out-of-staters in the Bay State to be "an annoying sideshow" for the overall movement. "It’s being raised by the governor’s obstinacy, so it has to be addressed," he says. But he sees it as a "side issue," since the Goodridge ruling has energized the rank-and-file in the gay community nationwide. Romney and Reilly cannot prevent Goodridge-like suits from materializing in other states. Nor can they stop recently married Massachusetts same-sex couples from moving to other states, where they can claim marital benefits.

In the end, it seems just a matter of time before same-sex marriage spreads across the country — if not because of the Massachusetts victory, then in spite of it. Gay men and lesbians want to marry, after all, and they’re willing to travel to obtain legal marriage licenses. Rhode Island’s Guerin sums up the sentiment best: "Down the road," he predicts, "gay marriage is going to be a reality whether it’s with Romney or the next administration or the next. People recognize that my partner and I have two eyes, a nose, a mouth, two arms, two legs, and we don’t bite. We just want what they have."

Gilbody, his partner, agrees: "The governor is just delaying the inevitable."

Kristen Lombardi can be reached at klombardi[a]phx.com