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Gay-marriage rule eased

Romney aide says clerks have discretion on residency proof

HYANNIS -- Romney administration officials said yesterday that out-of-state gay couples who want to marry in Massachusetts do not have to show documents proving that they live here or plan to move here, a major shift from the governor's earlier stance on enforcing limitations on licensing gay marriage.

Under the guidelines, any gay couple claiming a Massachusetts address could be granted a license, because clerks would not be required to demand proof of residency.

Following a training session for about 70 clerks at the Barnstable Town Hall, which serves Hyannis and several other Cape Cod villages, Romney's general counsel, Daniel B. Winslow, said the clerks are entitled to ask for proof of residency, as long as they require it of all couples, gay and straight.

But he acknowledged that the governor has no plans to sanction clerks who decline to ask for documentation, because under state law a clerk merely "has to satisfy himself, by requiring affidavits or otherwise" that the couple is telling the truth.

The signed marriage application, which includes a statement of residency, qualifies as an affidavit, Winslow said.

"We've suggested to the clerks that the law allows them to ask for documentation," Winslow said after the presentation, which was closed to reporters and conducted with Barnstable police officers and a state trooper standing sentry at the doors. But, he added, they are "not required to look behind a person's oath."

Winslow's advice signals a shift in the way Romney intends to enforce a 1913 law that bars out-of-state couples from marrying here if the marriage would be void in their home state. That law was designed to uphold other states' bans on interracial marriage.

Because no other state allows same-sex marriage, that law would block gay couples from coming here to marry if they do not live or intend to live in Massachusetts, Romney contends. Previously, the administration had indicated that it would demand both the signature attesting to residency and the documents proving residency. On April 24, Romney spokesman Eric Fehrnstrom said that, as gay marriages begin taking place after May 17, city and town clerks would be specifically instructed by the state to require evidence of residency, and he cited driver's licenses, utility bills, telephone listings, deeds, and rental leases as examples of acceptable evidence. A sample of the new marriage license application form written by the Romney administration contained spaces for clerks to write in the specific documentation of residency offered by couples.

"We have taken the common-sense view that gay marriage is not legal anywhere in the United States except Massachusetts starting on May 17," Fehrnstrom said at the time. "That means gay marriage is for Massachusetts residents only, unless circumstances change."

But in recent days some municipal clerks, including Boston's, have threatened to defy the requirement that they demand a document proving the residency of marriage-license applicants. Since 1977, clerks have been specifically instructed by the state Department of Public Health not to ask for those documents.

"The law states that if a clerk can satisfy himself through an oath, an affidavit, that would be sufficient; that's what I have done for as long as I have been clerk," said the Plymouth clerk, Laurence Pizer.

It is not his responsibility to determine whether a couple is lying, he said. "I'm hoping that people don't perjure themselves, but it's not up to clerks to determine whether someone is telling a lie."

Both Winslow and Fehrnstrom said yesterday that the wide discretion given to clerks is not a change from the administration's earlier statements. They said city and town clerks who spoke of their refusal to ask for the evidence were premature, because the policy was not outlined in detail until yesterday.

"The governor said his intention is to uphold the law that prohibits out-of-state gay couples from marrying here," Fehrnstrom said. "And that is exactly the point of much of the instruction that the clerks received today. There are two ways to provide proof of residency. One is by showing documentation; the other is by swearing an oath."

After Winslow's presentation, Linda Hutchenrider, the Barnstable town clerk and president of the Massachusetts Town Clerks' Association, agreed that "it is not up to us to be the police for this whole particular project."

"If they are signing under oath that they are telling the truth . . . I can't question that," she said.

Because it won't require clerks to ask for proof of residency, the administration is pointedly reminding them that issuing a marriage license to a gay or lesbian couple from out-of-state might end up creating serious legal complications for the couple. In his presentation, Winslow pointed out that a marriage without legal standing might affect the rights of children and come back to haunt the couple in a wrongful-death action, a divorce, or an estate challenge.

"The consequences of failure to abide by the law are just so great," he said. "We're going to operate under the assumption that clerks will act in accordance with the training and are people of good will."

Despite his stern warnings, however, Winslow later refused to spell out what sanctions, if any, clerks would face if they did not follow the law. State statues say that knowingly issuing a marriage license to a couple prohibited from marrying under the 1913 law carries a fine of between $100 and $500 or up to a year in prison or both. But according to Winslow's explanation of the law, clerks can't be compelled to do more than they do now to confirm residency.

Neither Winslow nor Romney's spokeswoman Shawn Feddeman would say whether penalties might be imposed on out-of-state couples who lie on their applications. Under Massachusetts law, the maximum penalty for lying on a marriage application is $100.

Those penalties are far lighter than those for other kinds of perjury. Under state law, "lying in a judicial proceeding or in a proceeding in a course of justice" may be punished with up to 20 years in state prison or a fine of up to $1,000 or up to 2 1/2 years in jail or by a combination of jail time and a fine.

Perjury on a marriage application is clearly considered a lesser crime according to the statutes, said Leonard Kopelman, a lawyer whose firm, Kopelman and Paige, advises many of the state's municipalities.

"I think the Legislature was trying to tell us something here," he said "You lie in court, and somebody goes to jail for it. That's very serious, and you've hurt other people. If you lie on this application, you've violated the law, but to what level are you hurting other people? These are social questions I can't answer, but I suspect what the Legislature had in mind is a difference in the quality of what is going on here."

Mary Bonauto -- legal director of Gay & Lesbian Advocates & Defenders, which brought the gay-marriage case before the Supreme Judicial Court -- said yesterday's presentation made it clear that "the governor had to bow to past practice, and the law, with respect to accepting people's oaths about their residence." But she continued to bristle at Romney's interpretation of the 1913 law, which she described as "extreme and overreaching."

"He is still putting the clerks in the position of enforcing his discriminatory view of the law," she said. "The roadblock is still up."

Winslow's presentation gave an indication that applying the 1913 law will be no clear-cut affair.

For example, he told clerks that applicants with more than one residence can choose which to write on the application form. Among the examples of those with more than one residence are college students who live at their parents' homes in the summer but on campus during the year; a person who owns properties in three different states and resides in each at different times of the year; or a person who resides in Massachusetts during the warmer months and in Florida in the colder months. 

A State Police officer stood atthe door as municipal clerks gathered for a closed training session yesterday in Barnstable Town Hall on the issuing of marriage licenses for same-sex couples.
A State Police officer stood atthe door as municipal clerks gathered for a closed training session yesterday in Barnstable Town Hall on the issuing of marriage licenses for same-sex couples. (Globe Staff Photo / Matthew J. Lee)
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