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Reilly says Romney lacks legal argument for a stay

Attorney General Thomas F. Reilly accused Governor Mitt Romney yesterday of trying to force political arguments before the Supreme Judicial Court by trying to seek a delay of the court's gay-marriage ruling.

Reilly said that Romney, who sent a two-page letter yesterday asking Reilly to seek delay of the ruling, had "not set forth one legal reason to back up the request."

Reilly said that his office would not honor the request and that he would not consider appointing a special assistant to handle the case, a process reserved for situations when the attorney general does not want to handle the case. A governor can only pursue legal cases in a court through the attorney general's office.

"The arguments that Governor Romney makes in this letter are political arguments," Reilly told a press conference in his office, an hour after he had received the letter. "The governor is free to make those arguments to the body politic. I will not permit him to make those political arguments in a court of law."

The attorney general's sharply worded rejection is a major blow to Romney's primary strategy for blocking gay marriages from going forward on May 17, the implementation date of the SJC ruling legalizing gay marriages.

Romney told a news conference that he had other options but refused to detail them. "I am not going to lay out all the options," he said. Legal specialists said, however, that the governor is out of options to get a delay.

In his letter to Reilly, Romney predicts a set of "novel problems" that would surface if voters approve a proposed constitutional amendment that would ban gay marriage and establish civil unions in November 2006. The Legislature, with Romney's support, passed the provision this week, but must approve it again in the 2005-2006 session for it to reach the ballot in 2006.

A stay, Romney said in his letter, "will avoid the question of whether the marriages or the related rights of same sex couples will become invalid." At a press conference yesterday, Romney was reluctant to describe or list the "confusions and complications" that he said that would result because of the ruling's implementation in May.

"I don't feel I am sufficiently schooled as an attorney to say what they might be," said Romney, who has a Harvard Law School degree.

He said that prior to the press conference he had been briefed by a lawyer in his office on a long list of issues that may arise.

He cited one potential problem when he described a case of a gay couple moving to another state and then seeking a divorce.

Reacting to the attorney general's comments, Romney's director of communications, Eric Fehrnstrom, accused Reilly of shutting both the governor and the citizens of Massachusetts off from access to the state's highest court in one of the most important and contentious issues to ever face the Commonwealth.

"Attorney General Reilly was not elected to be a judge," Fehrnstrom said. "He was elected to be the advocate for the people of Massachusetts. Under our constitution, the attorney general is the gatekeeper to the Supreme Court. By his action, he's closed the gate on the people of Massachusetts."

Fehrnstrom also said Romney needs a good lawyer to make the legal arguments for him. "There are plenty of lawyers to make legal arguments," he said. "What we need is for Tom Reilly to appoint one of them to represent us."

In his letter to Reilly, Romney said: "It is not right for the Attorney General to leave the Governor and the people of Massachusetts without recourse on a matter of critical importance. Everyone has a right to legal representation." He also said that without a stay, the public would see the "unilateral implementation" of the SJC decision as a "subversion of democracy," because the ballot initiative would still be pending.

Romney told Reilly that the gay marriage ruling could lead to "confusion and complications" because voters may ban same-sex unions in a 2006 referendum, although same-sex unions will have taken place for 2 1/2 years.

"A stay would allow the democratic process to complete its course, while not interfering with the SJC ruling," the governor wrote. "It is not right for the attorney general to leave the governor and the people of Massachusetts without recourse to the courts on a matter of critical importance. Everyone has a right to legal representation."

At his press conference before Reilly met with reporters, Romney said his legal basis for seeking a delay is based on a question that had not been raised in the case and therefore was a legitimate legal issue to take to the SJC.

"We believe that the arguments in favor of such a stay are lengthy and strong and they are quite different from the arguments one would make about whether or not gay marriage is a right under our constitution," the governor said.

But Reilly, who argued the state's case against gay marriage in the courts, rejected Romney's assertion that new legal questions have arisen. He said the two years of litigation that resulted in the Goodridge case legalizing gay marriage addressed the issues of enforcing the ruling.

"Whether the governor likes it or not or whether I agree with the decision, the plaintiffs have won their case," Reilly said. "They're entitled to the right that they've won, and I will not stand in their way."

He said that his job now is to enforce the law and that the governor's task is to implement it. "I expect him to do that," Reilly said. "The governor has had his day in court. I have had my day in court. We lost. He has to accept that."

At another press conference, gay-marriage supporters in the Legislature disputed Romney's descriptions of potential chaos if voters ban gay marriage after the state issues licenses to same-sex couples. They said the fear of gay marriage opponents, including Romney, is that the chaos they are predicting will not occur.

Romney "knows that when May 17 comes, the sky is not going to fall down in Massachusetts," said state Representative Paul Demakis, a Boston Democrat. "Gay marriages are going to happen and the people of the Commonwealth are going to accept it. And when that happens, the hysteria that he and other so-called leaders in the Commonwealth have tried to rip up these last few months, is going to dissipate."

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