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Photo Mary Ann Bragg
Provincetown Town Clerk Doug Johnstone looks through his marriage application files. |
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Gay marriage suit
moves to Appeals Court
Town set to receive 1,000th gay wedding application
Mary Ann Bragg
Banner Staff
The town of Provincetown will likely receive its 1,000th gay marriage license application in early November, Town Clerk Doug Johnstone said this week.
As of Tuesday the license application count was 915 and Johnstone joked about how, since the legalization of gay marriage on May 17, his one-inch-wide file folder has expanded to two boxes on the floor.
In 2003 the town of Provincetown processed 19 marriage licenses.
To allow all gay couples, including out-of-state pairs, to apply for marriage licenses in Provincetown, the town Board of Selectmen has authorized an appeal in the legal suit involving Johnstone and other Massachusetts town clerks.
Provincetown Special Town Counsel Gretchen Van Ness said last week that the clerks’ lawsuit against Attorney General Thomas Reilly has been moved to the Appeals Court of Massachusetts. Van Ness and attorneys from Palmer & Dodge, in representing the plaintiffs, will seek to have the town clerks’ standing in court confirmed. The attorneys will also ask the three-judge Appeals Court panel to consider the case on its original arguments, where the clerks’ believe that they are being forced by Reilly to discriminate against out-of-state gay couples.
Van Ness said she expects a briefing schedule for the case to be created after the records are assembled from Suffolk Superior Court, which could take more than a month. She said the state Supreme Judicial Court, which is the next judicial level above the Appeals Court, has the discretion to “reach down” and take the case as well.
The lawsuit against Reilly was filed in late June in Suffolk Superior Court following his warnings in early May to town clerks that they should not allow out-of-state gay couples to apply for marriage licenses. Reilly cited a state law, instituted in 1913 and little used since then, that prevents town clerks from issuing marriage licenses to out-of-state couples who could not receive a similar license in their own state. (The theory, from Reilly’s perspective, is that no other states allow gay marriage except Massachusetts.)
An interpretation of the 1913 law that favored the town clerks’ beliefs is what Van Ness and the other attorneys sought from Suffolk Superior Court judge Carol Ball. The attorneys also wanted Ball to temporarily stop Reilly from enforcing the 1913 law.
In her ruling in August, Ball declined to consider the lawsuit, though, saying that town clerks, as public officials, cannot sue other public officials.
In September Ball declined the attorneys’ request to reconsider the town clerks’ standing. She also referred to Assistant Attorney General Peter Sacks’ arguments for why the temporary injunction against Reilly should not be awarded.
For a temporary injunction against Reilly to be awarded, Van Ness and the Palmer & Dodge attorneys needed to prove that the clerks would have a likelihood of success on their claims overall and that they were suffering imminent irreparable harm under the existing condition.
“Although two and a half months have elapsed since the filing of [the lawsuit], the clerks offer no evidence that they have been sued or threatened with suit or have suffered any reputational damage for their enforcement of [the 1913 law],” Sacks said. “Presumably the clerks would have attached such evidence, if it existed, to the motion for reconsideration. Moreover the asserted harms, even if they were imminent, would not be irreparable.”
To gather funds to pay for the gay marriage legal case, the town Board of Selectmen established a gift fund for donations. On Oct. 6 the board of the Provincetown Business Guild, which promotes gay and lesbian tourism, voted to donate $500.
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Manor questions dominate Special Town Meeting
In the News
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Oct 21st, 2004