Justices of the peace warned not to discriminate against same sex couples

By Jennifer Peter, Associated Press, April 25, 2004

BOXBORO, Mass. (AP) Gov. Mitt Romney's top legal counsel told the state's justices of the peace Sunday to resign if they are unwilling to preside over the marriage of same-sex couples beginning next month.

While the Republican governor adamantly opposes gay marriage and has sought to delay its court-ordered legalization on May 17, legal counsel Daniel Winslow said that Romney fully expects the justices to comply with state law as it stands that day.

''Gov. Romney understands and respects that people have very strong personal views both for or against same-gender marriage,'' Winslow told a gathering of justices. ''But on this point, the law is clear. If a justice of the peace cannot comply with his or her oath of office, then we would expect that person to tender their resignation from that office.''

Refusing to marry gay couples could leave justices individually liable, raising the possibility of punitive damages in court, according to an official from the Massachusetts Commission Against Discrimination, who also addressed the gathering.

''Obviously, there is a real unquantifiable risk involving the decision not to marry gay couples,'' said David Fried, the commission's chief of enforcement. ''The law at this point is clear and to the extent that the justices of the peace have taken an oath to follow the law, it seems to me both appropriate and wise to do so.''

The justices received their instructions even as Romney announced his intention to block out-of-state gay couples from marrying in Massachusetts under a 1913 law that bars unions that would not be legal in the couples' home state.

According to Winslow, no other state allows gay marriage, although not all of them explicitly bar it. Romney will send letters to all governors and attorneys general in the country informing them that their residents will be barred from gay marriage in Massachusetts May 17.

Unless Massachusetts hears back from a specific state that same-sex marriage is allowed there, Romney will tell clerks in Massachusetts to bar those couples from marrying here, according to Winslow.

Romney has also ordered changes to the state's marriage application, replacing ''bride'' and ''groom'' with ''Party A'' and ''Party B.''

The new form adds questions not on the original form, including whether those applying for marriage were previously joined in a civil union or domestic partnership, and whether those unions were dissolved.

The new form also asks for ''evidence of where a person resides and intends to continue to reside.'' That evidence could include a utility bill, automobile registration or real estate documents. The form warns out-of-state couples that if they do not intend to reside in Massachusetts, the marriage ''shall be null and void.''

Despite its tough language, the form gives city and town clerks the final say in deciding how stringent to be and whether to issue a license. The clerks must sign the license indicating they are ''satisfied with the documentary evidence presented.''

Supporters of gay marriage say the 1913 law, which establishes the residency requirement, is discriminatory and was never envisioned to block same-sex marriage. They also criticize Romney for adopting the broadest interpretation possible for the law.

The state Supreme Judicial Court ruled in November that the state must begin issuing marriage licenses to same-sex couples by mid-May, raising a number of questions for clerks and justices of the peace.

One justice asked Winslow Sunday what he should say at the end of the wedding, instead of pronouncing the couple ''man and wife.'' Winslow said that justices can say ''bride and bride'', ''groom and groom'' or simply declare them married. If couples have a preference, Winslow said, it is fine to let them choose.

Justices interviewed after the informational meeting said they fully intended to follow the law, even if they disagree with gay marriage. Several said, however, that many of their colleagues have said at least privately that they are uncomfortable with these new brand of weddings.

''I believe marriage was not constituted to be anything other than a man and a woman,'' said Nelson Goldin, of Framingham, one of the state's approximately 1,200 justices of the peace, who are responsible for solemnizing marriages after couples obtain marriage licenses from city and town clerks. ''But I took my oath of office and told them I will marry anyone who the commonwealth of Massachusetts says has the right to be wed.''