Governor Mitt Romney is planning preparing to ask a court to block city and town clerks from issuing marriage licenses to out-of-state gay couples, a senior Romney aide said yesterday.
No final decision had been made last night, but an administration aide said Romney and his lawyers were leaning toward seeking an injunction against clerks who are defying his order that cities and towns not issue licenses to out-of-state gay couples. The aide said Romney would not seek criminal penalties against the clerks -- fines of between $100 and $500 or up to a year in jail, or both.
"We're not looking to make martyrs of anyone,'' said the aide. "We're looking to resolve this with a civil case.''
Romney could seek an injunction as early as todaywed, to block clerks in Worcester, Springfield, Provincetown, and Springfield, who have been issuing licenses to out-of-state couples. Tomorrow marks the first day those couples who did not get waivers of the state's three-day-waiting period for marriages on Monday will be able to pick up their marriage licenses.
The legal strategy emerged as Romney demanded copies of marriage license applications issued in Provincetown, Somerville, Worcester and Springfield, the four cities municipalities that are defying his order. His lawyers wanted the documents sent to his office by overnight mail, leading some municipal officials to conclude that Romney will use the applications in court soon. The copies of the applications, which clerks said have never been required by the state before, would help the governor to demonstrate that clerks had issued license applications to out-of-state gay couples even though they have no intention of living in Massachusetts. "What I have said all along here is that undoubtedly, this question will have to be answered by a judge somewhere, and I certainly hope no one would put town clerks in jeopardy and in the middle of this thing," said John W. Giorgio, a Boston lawyer who represents Provincetown. "The governor could seek an injunction to get clerks not to issue licenses. That's clearly an alternative."
Administration lawyer Judi Goldberg called the four municipalities on Monday and Tuesday, to ask for all the marriage license applications requested on the first two days gays could legally marry in Massachusetts. All of them except Somerville complied immediately with her request to send the documents to the Registry of Vital Records and Statistics. The officials in Somerville have decided to hold off on sending the documents until after tomorrow, when many couples who applied on Monday can pick up their licenses and get married.
"They only asked for the out-of-state couples," said Somerville Mayor Joseph A. Curtatone, whose city clerk has issued applications to 12 same-sex couples from out of state so far. "It's surprising and concerning. I just hope that politics aren't coming into play here."
Romney spokeswoman Shawn Feddeman refused to say why he was demanding the documents, saying only that "marriages performed outside the law will be null and void." Romney, for the second day in a row, kept an extremely low profile yesterday.
Romney has interpreted a 1913 law as prohibiting the granting of marriage licenses to residents of states that do not permit gay couples to marry.
Lawyers said yesterday that Romney could use the forms as evidence to prosecute clerks, for knowingly issuing the applications to out-of-state residents even though, as he interprets the 1913 law, those applications are not legal. Or he could use them to instruct the state Registrar to refuse to record the marriages of out-of-state couples, making it difficult for them to apply for benefits associated with marriages in their home states, such as health insurance and Social Security benefits.
Goldberg did not request copies of the applications from other cities and towns that complied with Romney's directive not to marry out-of-staters.
"On the advice of my city solicitor, I will need to comply, most reluctantly," said Worcester City Clerk David Rushford, who said he was confident he would be vindicated if the matter goes to court. "I'm confident of my interpretation, and consistent in my administration, of marriage law. I need to be prepared for any extreme and unprecedented action by this governor, and that reinforces my adherence to the law."
Keith Bergman, Provincetown town manager, said his staff was busy yesterday photocopying the 154 applications filled out by all same-sex couples Monday, and the smaller number of licenses issued.
But Bergman warned that Romney was too late if he hoped to use the documents to stop out-of-staters from marrying here.
"I know of at least one couple that went before Orleans District Court for a waiver yesterday, received it, and got married," Bergman said. "They said `I do,' and they're from Vermont."
After advice from the office of Attorney General Thomas Reilly, Somerville officials decided to comply, but only after tomorrow. Reilly declined to comment yesterday.
"There is a worrisome focus on these out-of-state couples," Curtatone said. "If I wasn't required, I wouldn't do it."
Even as Romney demanded the records from the offices of the four defiant clerks, it emerged that the city of Attleboro is also offering marriage licenses to gay and lesbian couples who live outside Massachusetts. However, Attleboro does not depart as far from Romney's directive as do the other communities.
Under the 1913 law, the state cannot grant marriage licenses to couples if their marriages would be "void" in their home states. Reilly has interpreted that law to apply only to residents of the 38 states which have specific prohibitions on gay marriage. Romney has interpreted it to apply to residents of all 49 other states, since none of them specifically permit gay marriage.
Attleboro City Solicitor Robert Mangiaratti agrees with Reilly's interpretation, so he has advised Attleboro City Clerk Susan D. Flood to grant marriage licenses to couples from the 11 states without laws that define marriage solely as a heterosexual institution.
Flood said she granted license applications to two couples from Rhode Island on Monday and Tuesday, in addition to 20 to Massachusetts residents. Romney's spokeswoman disputed that interpretation of the law.
"Same sex marriage is not legally permissible in any state in the nation except Massachusetts," Feddeman said in a statement. "We've contacted every governor and attorney general in the country, and asked them to tell us if we are wrong in our view. Not one of them has indicated that gay marriage is legal in their state."
Supporters of gay marriage say the 1913 law has been dusted off by Romney specifically to block gay marriages, and that it is being improperly and unfairly applied in this case.
"Someone should tell him he's the governor of Massachusetts, not of the United States," said Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus. "This is grossly inappropriate, to waste his time and taxpayer dollars on a witch hunt against gay people."
Meanwhile, gay and lesbian couples continued to go to city and town halls today to apply for licenses, but they did so in far fewer numbers and with less fanfare than yesterday, the first day of legalized gay marriage in the state.
In Boston, where the city received 99 same-sex marriage applications on Monday, 14 same-sex couples filed their intentions yesterday, and one couple obtained a marriage certificate, city officials said. Northampton received seven same-sex marriage applications yesterday. Cambridge, which received 227 applications from gay couples after midnight on Monday and 41 during the day, received a dozen total marriage applications yesterday, at least seven of which were from same-sex couples, city officials said. In the town of Brookline, which received 77 applications on Monday, two same-sex couples filed their marriage intentions yesterday.
Raphael Lewis and Jonathan Saltzman of the Globe staff and Globe correspondent Matthew Rodriguez contributed to this report.