updated 5/19/2004 7:09:09 PM ET 2004-05-19T23:09:09

The Democrat-controlled state Senate voted overwhelmingly Wednesday to repeal the 1913 law that Republican Gov. Mitt Romney is using to bar out-of-state gay couples from marrying in Massachusetts.

The repeal was approved 28-3 as part of the Senate version of the state budget. For the law to be wiped from the books, the repeal would have to get through the far more conservative House and then survive a certain veto by Romney.

The 81-year-old law bars nonresidents from marrying in Massachusetts if the union would not be legal in their home state. Because no other state allows gay marriage, Romney has argued that out-of-state couples are prohibited from marrying here.

A day after gay marriage became legal in Massachusetts on Monday, Romney requested copies of all marriage applications filled out by gay couples in Provincetown, Somerville, Springfield and Worcester — four municipalities that openly defied Romney’s order not to marry nonresident gay couples. As of Wednesday afternoon, Romney’s office had received the requested records only from Provincetown and Springfield.

The governor previously said he would declare any licenses issued to out-of-state gay couples void, and he threatened legal action against any clerks who issued them.

Democratic state Sen. Jarrett Barrios, a gay lawmaker from Cambridge who sponsored the repeal, cited the law’s “shameful origins” — it was enacted as a way to bar the recognition of interracial marriages.

Senate Minority Leader Brian Lees, a Republican, supported the repeal of what he called an “archaic” law, but said Romney was just doing his job.

“The governor is enforcing the law that is on the books,” Lees said.

Richard Moore, one of three senators opposed to the repeal, said Massachusetts should not provide same-sex marriages for the rest of the country.

“Let the other states take on that responsibility for themselves if that’s what they want to do,” said Moore, a Democrat.

A spokesman for the governor said the Senate vote reaffirms “what has been obvious to us all along.”

“This law is not Gov. Romney’s invention,” said the spokesman, Eric Fehrnstrom. “This is the law of the land and the governor cannot pick and choose which laws to enforce.”

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