Coakley gives okay to 1913 law referendum

Massachusetts Attorney General Martha Coakley has approved a referendum petition on the recently repealed 1913 law, which prevented most out-of-state same-sex couples from getting married in Massachusetts. The repeal, which was signed into law by Gov. Deval Patrick on July 31, is being challenged by well-known anti-gay advocacy group MassResistance, headed by Brian Camenker of Newton.

Camenker did not respond to requests to comment for this story.

In order for the referendum, known as "An Act Relative to Certain Marriage Laws," to reach the ballot MassResistance must gather 33,297 signatures within 90 days of the signing of the repeal bill. Should they collect enough signatures - which must be certified as valid by Secretary of State William Galvin - by the Oct. 29 deadline the question will appear on the ballot in 2010.

Unlike the failed effort last year by anti-gay activists to place a referendum question on the ballot to pass a constitutional amendment to ban same-sex marriage, MassResistance's referendum does not require approval by the legislature since it would not involve changing the state constitution. The 1913 law prevents out-of-state couples from marrying in Massachusetts if their marriage would be void in their home state, and after decades of non-enforcement it was revived in 2004 by then-Gov. Mitt Romney to block most out-of-state same-sex couples from marrying in Massachusetts. Opponents of the law argue that it was passed in 1913 at least in part to prevent interracial couples from skirting the anti-miscegenation laws of their home states and coming to Massachusetts to marry.

Coakley, a longtime advocate on LGBT civil rights, has been a strong supporter of both marriage equality and the repeal of the 1913 law. Emily LaGrassa, a spokeswoman for Coakley's office, was adamant that Coakley did not make the decision to approve the petition based on personal beliefs.
"She supports the repeal of the 1913 law, [and] as you know she is a strong supporter of gay marriage, but the job that we had to do here is to look at this legal question and determine whether or not it is constitutional [in] the way that it is written. That is the only question that is asked of us," said LaGrassa, who referred to the job of the Attorney General in the referendum process as a having "a very limited scope of review."

Gay and Lesbian Advocates and Defenders (GLAD) Legal Director Gary Buseck disputed the assertion that the attorney general was in a position where she was forced to certify the petition.

"There are matters that are excluded from the referendum, there are laws that the legislature passes that are not allowed to go out on to a referendum," said Buseck. "For example, back in 1989 then-Attorney General Jim Shannon refused to let the so-called gay rights bill go out on a referendum [that would have given voters the chance to repeal it], and ultimately that was upheld by the Supreme Judicial Court. I think similarly, the attorney general here could have very appropriately said that this was not a matter that could have gone out onto a referendum so, no, I don't think they were compelled to take this position."

According to a guide to filing referendum petitions produced by Secretary of State William Galvin's office, the subjects that are excluded from a referendum petition include "religion, judges, the courts, particular localities of the Commonwealth, state appropriations and certain provisions of the state constitution's Declaration of Rights." In 1989 Shannon rejected the referendum on the gay rights bill based on religious grounds; the gay rights bill contained an exemption for religious institutions, and Shannon argued that repealing the law would eliminate those protections. Shannon had been a strong supporter of the gay rights bill.

When asked whether she agrees with the attorney general's decision, Arline Isaacson, co-chair of Massachusetts Gay and Lesbian Political Caucus, was quick to agree with Buseck.

"No, we believe that this question touches on one of the excluded areas that would keep it from going to ballot, but if the matter ended up passing we would support efforts to challenge it," said Isaacson.
Despite his disagreement with the attorney general's decision, Buseck is realistic that what's done is done, and he is well aware that collecting signatures is not an impossible feat, despite the challenges MassResistance will face.

"In the scheme of things, 33,297 signatures is not a huge number of signatures to gather. They are going to need probably somewhere in the neighborhood of 45,000 to 50,000 to make sure that they have 33,297 accurate ballot signatures," said Buseck. "I guess we will have to wait and see."

MassEquality is taking the same stance, in that they are waiting to see what will happen with the signature collection effort before making any further decisions about how to respond.

"We're making sure all of our members are aware of it and we're following it closely but until then, there's not much for us to do," said Matt McTighe, political director for MassEquality. "Unless it does [get the required number of signatures], there's not a lot of preventative action that we can really take."

Two potentially valuable allies in MassResistance's signature gathering effort have declined to support the campaign. Both the Massachusetts Family Institute (MFI) and Catholic Citizenship, the two groups that led the signature gathering effort for the failed marriage amendment, announced their decisions this week to sit out the campaign to reinstate the 1913 law. In a statement announcing MFI's decision MFI President Kris Mineau said his organization choose not to participate because hundreds of out-of-state same-sex couples would likely be married in Massachusetts before the referendum goes on the ballot, and the legislature and the governor could easily overturn the referendum even if it passed.

Regardless of all the factors working against MassResistance, Isaacson agrees it is important to keep this issue on the radar.

"Of all things that people want to spend their time and money on right now, this is not at the top of the list," noted Isaacson. "This is no longer a front burner issue for most folks... But having said that, we would be foolish and irresponsible to not take it seriously."

In addition, GLAD is prepared to fight a strong case if signatures are collected.

"We're looking at the legal arguments and we will fight this any way that we think is appropriate and strategic to do if they get the signatures, but if they don't get the signatures the matter is dead," said Buseck. "We're still hopeful that they will not get this out of the starting gate in the sense of gathering the signatures, but if they do then the question is on the table and ripe, and GLAD will do whatever we can do to fight this."