Massachusetts ACLU and Town Clerks Challenge Governor's Discriminatory Ban on Marriage Licenses for Non-Resident Same-Sex Couples

March 11, 2005 12:00 am

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BOSTON -The American Civil Liberties Union of Massachusetts and 13 city and town clerks today filed an historic brief with the Supreme Judicial Court seeking authority to challenge orders by the governor and state attorney general that would require the clerks to discriminate against same sex-couples who come to the state to marry.

“We have taken an oath to uphold the Constitution of Massachusetts,” said Catherine Flanagan Stover, a Nantucket county clerk. “The Supreme Judicial Court has already said that, within the Commonwealth, discriminating against gay and lesbian couples seeking to marry violates the Constitution. We believe the governor’s orders put us in the position of violating our oath of office. We are asking the court to clarify the law so that clerks are not put in that position.”

After the state high court ruled in 2003 that gay and lesbian couples could not be denied the right to marry, Governor Mit Romney denounced the decision and instructed municipal clerks not to issue marriage licenses to any non-resident same-sex couples. Attorney General Tom Reilly also threatened to take legal action against clerks who disregarded those instructions, including imposing fines and up to one year in prison.

The ACLU said that today’s action by the clerks, who are the very officials most knowledgeable about the enforcement of the state’s marriage laws, demonstrates that the governor’s new policy is discriminatory. The clerks’ case also raises important questions about the right of local officials to oppose orders from state officials that may require them to carry out their duties in an unconstitutional manner.

“We refuse to silently stand by and blindly carry out orders that are discriminatory,” said David Rushford, Clerk of Worcester. “If local officials had refused to carry out racially discriminatory state policies during the civil rights movement, we would have hailed their actions. Today, we have the opportunity to say no to discrimination in carrying out our duties and we hope the court will recognize the importance of our ability to do that.”

Although both the governor and the attorney general have disavowed any intent to discriminate, they are relying on a moribund 1913 state statute that had never before been invoked to prevent any out-of-state couple from marrying in Massachusetts. The statute says that marriage licenses shall not be given to non-residents whose marriages would be “void” in their home states. However, the clerks say that the officials are intentionally targeting gays and lesbians.

“State officials are telling us to apply the law in a way designed to prevent gay and lesbian couples, in particular, from marrying,” said Carole Marple, Clerk of Sherborn. “They are telling us that we may not issue marriage licenses to non-resident same-sex couples unless the home state has affirmatively said such marriages are allowed in that state – a rule completely different from that applied to non-resident straight couples.”

Plymouth clerk Lawrence Pizer agreed.

“For almost four centuries, town and city clerks have taken pride in serving all residents equally,” said Pizer. “The Supreme Judicial Court’s decision allowed us to extend this tradition, until the governor demanded that we keep same-sex couples from coming to Massachusetts to marry.”

The clerks challenging the governor’s directives represent a broad cross-section of Massachusetts, coming from Provincetown, Somerville, Worcester, Acton, Burlington, Cambridge, Marblehead, Nantucket, Northampton, Plymouth, Sherborn, Westford and Rowe. A separate brief was also filed today by out-of-state lesbian and gay couples challenging the ban.

On behalf of the ACLU of Massachusetts, Kevin Batt and Anne Robbins of the law firm Palmer and Dodge are representing 12 of the 13 clerks in this case. Attorney Gretchen Van Ness is representing the Provincetown clerk. Oral argument in this case is expected to take place in the fall at the same time the appeal by the non-resident couples will be heard by the high court.

For more information on the ACLU’s work on ensuring marriage equality across the country, go to: /LesbianGayRights/LesbianGayRightslist.cfm?c=101

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