BOSTON – Running out of time and options, Gov. Mitt Romney (search) said Thursday he will seek emergency legislation aimed at forestalling gay marriages (search), which are scheduled to become legal in Massachusetts on May 17.
The legislation would allow Romney to appoint a special counsel who would ask the state's highest court to delay its ruling on gay marriage. The governor said it would allow him "to protect the integrity of the constitutional process."
"Fundamentally, I believe this is a decision which is so important it should be made by the people," Romney said. "I would like the right to be able to represent the people and my own office before the courts in Massachusetts."
Romney wants the court to stay its decision another 2 years, until voters have had an opportunity to weigh in on a constitutional amendment -- approved by the Legislature last month -- that would ban gay marriage and legalize civil unions.
Romney said he would appoint retired Supreme Judicial Court Justice Joseph R. Nolan (search), who has called the court's November ruling legalizing gay marriage an "abomination," to represent him in court.
Acknowledging that victory is not assured, Romney said he would also be scheduling regional informational meetings for local clerks on how to handle gay marriages if the Legislature does not approve his request or if the high court rejects it.
Democratic Attorney General Thomas Reilly last month rejected the Republican governor's request to seek a delay from the court until November 2006, the earliest the proposed constitutional amendment could reach voters.
The attorney general, as the state's chief legal officer, determines legal policy for the state. The governor has no legal authority to independently go to court on behalf of the state. Reilly's office did not immediately return calls seeking comment.
"This would be an unprecedented intrusion on the attorney general's authority," said attorney Robert Sherman, who served as counsel to former Attorney General Scott Harshbarger. "I think that for the governor not to respect the separate lines of authority that have been created within the executive branch does not bring credit to him."
Any legislation to stop gay marriage would likely face an uphill battle in the state Senate, where 22 of the 40 members last month voted against the constitutional amendment. It passed anyway because there were enough votes among House members.
Even Senate President Robert Travaglini, D-Boston, who supported the amendment, has said there is little appetite in the chamber to block gay marriages on May 17.
"This strikes me as a Hail Mary pass at best," said attorney Paul Martinek, editor of Lawyers Weekly USA. "It's an extreme measure to try to get the court to do something that it's probably not going to do anyway."
Massachusetts Family Institute (search) president Ron Crews argued, however, that the Senate should allow the people to be heard.
"I would hope that since there is strong support, not only in the House but in the state, to defend the traditional definition of marriage then I would hope that this Senate would strongly support the governor in his action and work with the House to pass this quickly," said Crews, a leading foe of gay marriage.
Romney has repeatedly said he would like to avoid the legal confusion caused if gay marriages are allowed to occur this spring. The constitutional amendment must still be approved by the Legislature a second time, during 2005-2006, before it goes to the ballot.
With the May deadline approaching, local clerks have been demanding answers from the administration, arguing they need new forms and additional training if they are to do their jobs.
The high court ruled in November that it was unconstitutional to bar gay couples from marriage, setting the stage for the nation's first state-sanctioned gay weddings. The court reaffirmed the ruling by the same 4-3 majority in February, after the state Senate asked for guidance about whether civil union legislation -- the provides the benefits of marriage without the title -- would suffice. The majority emphatically said no.
While Reilly has said it would be fruitless to go to the court for a third time on the same question, Romney and others argue that they are posing a new question, regarding the legal chaos that would ensue -- not the legality of gay marriage.
Nolan said, however, that one of the most important considerations when requesting a delay of a ruling is what has happened since the case was decided.
"In this instance, something highly significant has happened," he said at a news conference with the governor, referring to the Legislature's approval of the constitutional amendment. "It's a significant change of circumstance."
He did not guess what the court would do.
"I couldn't guess what the court was going to do when I sat on the court," Nolan said.