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Senate votes to end 1913 law

Action is tied to gay marriages

The state Senate yesterday voted overwhelmingly to repeal a 1913 law that Governor Mitt Romney is enforcing to prevent out-of-state same-sex couples from marrying in Massachusetts.

The repeal measure passed by a vote of 28 to 3, but it was uncertain the House would follow suit because Speaker Thomas M. Finneran does not want the contentious issue tied up in state budget negotiations.

The action came as Romney's legal team continued to collect marriage license paperwork from four Bay State communities where officials have refused to turn away out-of-staters. Aides say he will probably seek a court injunction to force municipal clerks into compliance with the 1913 law, and that he is also weighing whether to attempt to nullify licenses granted to out-of-state couples.

Aides to the governor said yesterday that they will not act until the administration receives all the marriage license applications requested from clerks in Worcester, Somerville, Provincetown, and Springfield, but that may not happen immediately. Officials in Somerville and Worcester said they would provide the documents in ``a reasonable amount of time.''

Meanwhile, attorneys for Gay & Lesbian Advocates & Defenders (GLAD), who were planning to challenge the 1913 statute in a civil lawsuit, said yesterday that they are preparing a legal counteroffensive for when Romney seeks an injunction.

State Senator Jarrett T. Barrios, one of the chief sponsors of the repeal measure passed yesterday, said the overwhelming margin of victory for the legislation was a clear message to Romney, especially since five of the Senate's seven Republicans voted to strike the 1913 law.

"I believe the message sent by the Senate today is that the people of Massachusetts want the governor to act more like his father, [former Michigan governor] George Romney, than like George Wallace," the segregationist former governor of Alabama, Barrios said. "Mitt Romney's father was a civil rights leader and a man of great courage. He supported the Civil Rights Act, he brought people together and did not divide them."

Eric Fehrnstrom, Romney's communications director, said the Senate vote made one thing abundantly plain: that the 1913 law is on the books and must be enforced until repealed, despite assertions by critics that Romney is selectively enforcing an archaic law to discriminate against gays.

"The fact that the Legislature is debating whether or not to change the law points out what has been obvious to us all, and that is, this is the law of the land," Fehrnstrom said. "The governor cannot pick and choose what laws to enforce."

The repeal measure is attached to the Senate's version of the state budget, but it is not included in the House version. To pass, the repeal must be agreed upon by budget leaders from the House and Senate in a closed-door conference. The entire consensus budget is then voted up or down by the House of Representatives and the Senate.

Asked if he would push hard to make sure the 1913 law repeal gets into the consensus budget, Senate President Robert E. Travaglini yesterday vowed to "exert the necessary level of energy and effort to keep our budget intact."

The Senate was more aligned on yesterday's vote than it was on the final vote on the proposed constitutional amendment on gay marriage in March. The amendment, which would limit marriage to a man and a woman and establish civil unions with equal benefits for same-sex partners, was favored by 17 senators and opposed by 22 with one senator absent. The proposed amendment passed the joint convention, 105-92.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, said she would now lobby House and Senate leaders to make sure the repeal survives. "We have no delusions about this issue being at the top of the agenda," Isaacson said. The 1913 statute, passed in part to uphold other states' bans on interracial marriage, says that no out-of-staters can marry in Massachusetts if the marriage would be "void if contracted" in their home state.

Romney has argued that, since no other state has legalized gay marriages, no out-of-staters may marry here unless they intend to move to Massachusetts.

Gay-rights groups, on the other hand, argue that the law has been largely ignored for decades, and that it runs afoul of the Supreme Judicial Court's Nov. 18 ruling granting gays and lesbians the right to marry.

State Senator Dianne Wilkerson, a Democrat, called Romney a "political opportunist" for his handling of the 1913 law.

"He is invoking a statute that has history in the darkest days of this Commonwealth and using it to impose discriminatory practice on another group of people," Wilkerson said.

Brian P. Lees, the Senate's top Republican, voted to repeal the 1913 law yesterday, but rose to Romney's defense against allegations that he is being discriminatory or selective in his enforcement of the law.

"The governor is enforcing the law that's on the books," Lees said.

As the Senate debated yesterday, GLAD was preparing to fight the Romney administration in court. GLAD yesterday posted a notice on its website asking couples from Connecticut, Rhode Island, New Hampshire, Maine, Vermont, and New York to contact the organization if they have filed, or who want to file, for marriage in Massachusetts. GLAD might use the couples as plaintiffs in a lawsuit, or offer to represent them if they have difficulty obtaining benefits as married couples.

"I am going to remain hopeful the governor doesn't take this extreme action," said Mary Bonauto, civil rights project director at GLAD. "If he's going to rely on the 1913 law to block the door to these couples, then we want to make sure the couples' interests are represented, in case public officials are asked to resurrect the discrimination condemned in the Goodridge case."

Fehrnstrom yesterday would not say when the Romney administration would take action to apply the law. He also would not rule out the possibility that Romney will take action against the couples themselves -- which could include nullifying their marriages, or prosecuting out-of-state couples who swore to statements that they were Massachusetts residents.

"Nearly every city and town clerk in Massachusetts is complying with the Department of Public Health's instructions, and they should be commended for following the law," he said. "A handful of town clerks have made public statements that they will issue marriage certificates to same-sex couples from other states. We are reviewing these violations, but have no comment on what enforcement steps we plan to take." 

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