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As governor, Romney faced challenge on gay marriage

When Massachusetts' highest court ruled in favor of same-sex marriage, the Republican's response alienated constituencies on both sides. Critics say he took it as an opportunity to pivot right, hoping to raise his national profile with conservatives.

April 29, 2012|By Matea Gold and Melanie Mason, Washington Bureau

"We certainly have to follow the law, and the Supreme Court has laid down what we must do," he said on NBC's"Today" show the day after the ruling. "But in my view, the right action is to follow two courses at the same time."

But the governor quickly dropped all talk about complying with the ruling. Behind the scenes, Romney advisors worked to come up with ways to head it off, according to those involved. They consulted conservative constitutional experts such as historian Matthew Spalding, who works closely with former Reagan Atty. Gen. Edwin Meese III at the Heritage Foundation.

It was soon clear that Romney could not push a gay marriage ban through the state's liberal-leaning Legislature. So he helped persuade Republicans to support a compromise amendment that barred same-sex marriage but legalized civil unions.

It was a purely tactical move: The Supreme Judicial Court had already said that civil unions would not satisfy its ruling. But the Romney administration hoped to use the amendment — which required additional approval by the Legislature in 2005 and voters in 2006 — to persuade the court to postpone the start of gay marriages.

The maneuver failed when then-Atty. Gen. Thomas Reilly, a Democrat, declined to ask the court for a stay. Romney ultimately abandoned his support for the compromise measure, calling it "muddied," and endorsed a separate citizens' petition for an amendment to ban gay marriage. Still, some conservative activists criticized Romney for opening the door to civil unions.

"He was everywhere on this issue," said C.J. Doyle, executive director of Catholic Action League of Massachusetts, a group that worked to pass the marriage ban.

As the court's deadline neared, Romney tried another tactic: he seized upon a 1913 law that barred out-of-state couples from marrying in Massachusetts if the marriage would not be recognized in their home state.

The measure was originally drafted by the National Conference of Commissioners on Uniform State Laws — a state-backed group of judges, lawyers and scholars who write model legislation — amid national anxiety about interracial marriage, then illegal in about half the country. The African American heavyweight boxing champion Jack Johnson had recently made headlines by marrying a white socialite from Brooklyn. Soon afterward, a federal amendment to ban miscegenation was introduced in Congress.

That same year, Massachusetts — which had legalized interracial marriage in 1843 — passed the conference's Uniform Marriage Evasion Act, a law crafted in part to keep people from skirting their home state bans on interracial marriage, said Joanna Grossman, a professor at Hofstra Law School who studies marriage regulations.

In 2003, the statute was still on the books, but had been largely forgotten until it was mentioned in a footnote in the Goodridge decision. Romney aides said there was little debate internally about the merits of using it to blunt the ruling's effects.

"We didn't think we were stretching the bounds of legal reasoning to apply it in this case — it was stated in the very decision that legalized gay marriage," Flaherty said.

In late April 2004, less than a month before gay marriages were set to begin, Romney announced that the state would begin checking the residency of all couples seeking marriage licenses.

"Massachusetts should not become the Las Vegas of same-sex marriage," he told the New York Times, a line he has repeated frequently on the campaign trail this year as he touts his efforts to stop gay marriage. "We do not intend to export our marriage confusion to the entire nation."

The administration sent town clerks a thick document detailing the marriage laws in 55 states and territories. Romney warned that those who accepted marriage applications that violated other states' laws would be subject to "appropriate enforcement action," which under Massachusetts law could include fines or jail time. (Some town clerks defied Romney, but none were punished.)

David J. Rushford, the Worcester town clerk, continued to grant licenses to out-of-state couples. He said Romney used "the power of an executive office to twist the spirit of the law and to intimidate those people whose job it is to carry out the law."

Four years later, Romney's Democratic successor, Gov. Deval Patrick, signed a bill repealing the 1913 statute, which he called discriminatory.

Allies believe Romney's ultimately unsuccessful efforts to stop gay marriages in Massachusetts were driven in part by a personal conviction shaped by his faith as a devout Mormon.

"It's not just a political issue — he stands for something he believes in, his wife believes in," said Kris Mineau, head of the conservative Massachusetts Family Institute, a group that worked closely with Romney on the citizens' amendment to ban gay marriage. (The measure failed in the Legislature after Romney left office.)

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