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Worcester Telegram and Gazette

charles baron


May 04, 2004

Clerk 'thrilled' by Menino's gay rites stand;
Plan to ignore residency law

By Shaun Sutner; TELEGRAM & GAZETTE STAFF

Emboldened by signs that Boston Mayor Thomas M. Menino will defy Gov. Mitt Romney on gay marriage, Worcester City Clerk David J. Rushford yesterday reaffirmed his intention to ignore a residency law that could prevent some same-sex couples from marrying.

When gays and lesbians begin requesting marriage licenses May 17, Mr. Rushford said he will disregard new forms prepared by the administration that require applicants to provide proof of residency to comply with the law.

Under the 1913 statute, marriages are invalid if the unions would be prohibited in the partners' home state.

Because gay marriage is outlawed in at least 38 states, Mr. Romney -- an opponent of gay marriage -- has instructed town and city clerks to deny licenses to couples who can't prove they will live in Massachusetts.

''I'm adhering to the law and regulations as written. If the governor is seeking to change how marriage laws are applied, he should have a basis in law, not personal opinion,'' Mr. Rushford said.

Until the last few days, Mr. Rushford and the town clerk in the gay haven of Provincetown were the only prominent municipal officials in open defiance of the governor.

They have maintained that clerks have never enforced the residency law and it is discriminatory to apply it only to gay couples now. Other critics of the law criticize it as a vestige of racism because it was originally adopted in part to prevent interracial marriage.
But The Boston Globe recently reported that Mr. Menino was considering joining them by not enforcing the 1913 law.

For Mr. Rushford, Mr. Menino's apparent willingness to let city officials issue licenses to all gay couples who apply for them is the statement from a major state figure that is needed to close ranks against the governor.

''I was thrilled to hear that Menino is coming our way,'' Mr. Rushford said. ''That's the heavyweight we needed. What Boston does is really going to say whether this is over for the Romney administration.''

The Worcester clerk also reiterated that he will refuse to participate in a training session for clerks tomorrow at University of Massachusetts Medical School led by the governor's chief legal adviser.

The training begins today with a session in Hyannis. Three others are scheduled across the state, concluding May 12, five days before it will be legal for gays and lesbians to wed. It remains unclear what information will be provided to the clerks other than new gender-neutral marriage license application forms. ''I don't need this governor to train me in how I've been serving the public for 25 years,'' Mr. Rushford said.

Shawn Feddeman, the governor's press secretary, said yesterday that Mr. Menino's comments were premature because the training sessions haven't been held yet. ''We'll be providing city and town clerks with discretion in how they can satisfy the residency requirements,'' she said.

The new application forms list the following as proof of residency: utility bill, bank or credit card statement, telephone listing, current voter registration, employment or business address, driver's license, vehicle registration, tax returns and deed or lease.

Mr. Rushford's position is that the Nov. 18 state Supreme Judicial Court ruling that legalized gay marriage as of May 17 clearly gives gays and lesbians the same rights to marry as heterosexuals. He said he will continue use of the old marriage intention forms, which do not ask clerks to verify residency, and simply change ''bride'' and ''groom'' to gender-neutral terms.

Mr. Rushford contended that the new forms issued by the governor discriminate against gays by focusing on residency to the exclusion of other issues. For example, the documents contain no provision for checking on whether applicants' previous marriages have been dissolved.

''This governor is obsessed with the question of residency, but has no concern about bigamy,'' Mr. Rushford said.

The governor so far has declined to say what action, if any, he would take against municipal officials who defy him. One option, some gay marriage opponents said, is to ask law enforcement authorities to pursue criminal charges against disobedient clerks.

''I think they have a duty to obey the law,'' said state Rep. John P. Fresolo, D-Worcester, an early sponsor of a constitutional amendment to ban gay marriage in Massachusetts. ''If the law states people in the commonwealth shouldn't marry, then they should abide by it.''

If clerks don't comply, ''that's when the attorney general's office should specifically state what their duties are,'' Mr. Fresolo continued.
However, some legal experts think the governor is unlikely to move against people such as Mr. Rushford, particularly if major political players such as Mr. Menino end up flouting the law as well.

''I suppose they could try to discipline them in some way. But in the end, it is pretty much unenforceable because there are so many ways around it,'' said Charles H. Baron, professor of constitutional law at Boston College Law School.

Mr. Baron also said the law, if challenged, would likely be ruled a violation of civil rights.''Any such suit would be a test case,'' he said. ''There's a very good chance that if this case went to state court or even the U.S. Supreme Court that it would be found unconstitutional.''

Meanwhile, legislation to repeal the 1913 law has picked up a few more sponsors but remains stalled in the Legislature. State Rep. Robert P. Spellane, D-Worcester, who sponsored the legislation, said Mr. Menino's apparent willingness to disregard the law could help drum up support for his bill, which now has 23 co-sponsors.