Wednesday, March 31, 2004

AG Tom Reilly - Yes, But 

Frank Phillips of the Boston Globe has a piece on with more details about the letter sent by Gov. Romney to Attorney General Tom Reilly, requesting that Reilly petition the SJC for a 2.5 year stay on implementation of gay marriage, and Reilly's response. Apparently the letter lacked any legal arguments. Romney separately stated, regarding the specifics of the "confusion and complications" he fears would come without such a stay:

"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.

So Harvard Law School didn't provide him sufficient schooling, and despite a briefing on a "long list of issues," the only issue he would mention in his press conference was a case where a gay couple married here, moved out of state and then sought a divorce in that state. Given that other states have recently been amenable to dissolving Vermont civil unions, that doesn't seem like an insurmountable issue.

While Reilly has refused to petition the SJC for a stay, given that the SJC has made its decision on the matter quite clear in two separate opinions and that Gov. Romney did not raise any issues not addressed in those opinions, the AG did pull out the 1913 MA law I mentioned in an earlier post. Created during the days when states had differing positions on antimiscegenation laws, this statute bars out of state couples from receiving MA marriage licenses if they would have been barred from marriage license issuance in their home state. Reilly declared that gay couples from the 38 states which have DOMA laws will not be able to receive MA marriage licenses. There is disagreement over whether that law will stand up to scrutiny should couples decide to challenge it. The author of the article referenced above, Raphael Lewis, discussed the issue with Harvard Law School Constitutional Law Professor Laurence Tribe, who is of the opinion that :

"...the issue is cloudier than Reilly or Romney let on and that legal challenges are sure to result if gay couples from other states are refused marriage licenses.

Because the US Constitution forbids discrimination against any class of citizens, Massachusetts officials may be compelled to ignore DOMA laws in other states, Tribe said.

If Gov. Romney would make a quick trip across the river to his alma mater, I'm sure Prof. Tribe would be happy to help fill in the self-described gaps in the governor's legal education regarding such constitutional questions.

The NY Times also has an article on the 1913 statute issue and the AG's refusal to request a stay.

Posted by Beth Henderson at 8:40 AM