R: PHX, S: FEATURES, D: 07/15/1999,

Family values

On three occasions in recent weeks, the state's Supreme Judicial Court has issued wise, humane rulings in cases concerning the rights and responsibilities of nontraditional families. Two lessons may be drawn from these rulings, which have important implications for lesbians and gay men. The first is that Governor Paul Cellucci, who will have an opportunity to fill four positions on the SJC, must not be allowed to use those appointments to undo the court's progressive majority. The second is that the legislature must act when the judiciary cannot.

The SJC ruled on June 29 that a lesbian who had helped raise her former partner's son should be awarded visitation rights, because she had acted as a "de facto" parent. The details of the case reveal a richness and level of intimacy comparable to that of any heterosexual family: the non-biological parent had cut the umbilical cord; the two women organized a naming ceremony in which they were both recognized as parents; and the boy referred to each of them as his mother. But when the couple split up, the biological mother relied on outmoded law to argue that, since her ex-partner was not a blood relative, she should have no parental rights. Fortunately the SJC disagreed, with Justice Ruth Abrams writing, "It is to be expected that children of nontraditional families, like other children, form parent relationships with both parents, whether those parents are legal or de facto."

A week earlier, the SJC had issued a nearly identical ruling involving an aunt who had been denied visitation rights by the father of a child she had virtually raised. Significantly, only the ruling concerning the lesbian couple raised the hackles of the Catholic Action League of Massachusetts, whose executive director, C.J. Doyle, denounced Abrams's opinion as being harmful to "traditional families and stable marriages." Doyle's selective outrage reveals the essential bigotry behind his stance.

Doyle was considerably happier when, on July 8, the SJC threw out the city of Boston's domestic-partnership ordinance, which granted the unmarried partners of city workers -- both heterosexual and homosexual -- health insurance and other benefits. But a close reading of the SJC's decision reveals not a lack of compassion but, rather, an inability to act in the face of a state law whose wording is very specific. The law, dating back to 1955, defines "dependents" as husbands and wives, children under 19, and children over 19 who cannot provide for themselves. "We recognize that . . . [a] `family' may no longer be constituted simply of a wage-earning father, his dependent wife, and the couple's children," wrote Justice Margaret Marshall. "Adjustments in the legislation to reflect these new social and economic realities must come from the Legislature."

Even Governor Cellucci, whose support for gay and lesbian issues has sometimes wavered, sounded a humane note following the ruling, saying that he had vetoed the Boston ordinance precisely because it was not limited to homosexual couples -- who, after all, are most in need of domestic-partnership legislation, since they cannot legally marry.

Indeed, marriage is the ultimate solution to the legal disabilities faced by lesbians and gay men. Justice Charles Fried, who dissented in the lesbian-custody decision, recognized that, calling Abrams's ruling an attempt to legalize gay marriage through judicial rather than legislative means. Although the SJC's identical ruling in the case of the aunt shows that Fried was wrong, both his concerns and those voiced by Marshall stand as a challenge for the legislature to act.

Unfortunately, the federal Defense of Marriage Act outlaws gay marriage, and the state legislature is now considering a superfluous, vindictive clone that Cellucci supports. Clearly state lawmakers are not going to turn around and make Massachusetts the first state to legalize such unions -- even though they should.

Short of that, though, the legislature should take every possible step to ensure that gays and lesbians enjoy the full protection of the law, through domestic-partnership guarantees, parental rights, and other appropriate measures. Indeed, the legislature must act immediately to undo the harm caused by the loss of domestic-partnership rights in Boston -- a loss that could affect the partners of municipal employees in Cambridge, Provincetown, and Springfield, where similar ordinances are on the books.

As for Cellucci, he should stop straddling and side with his better angels by supporting any and all steps to recognize the legal equality of gays and lesbians, and by making sure the Supreme Judicial Court continues to reflect Ruth Abrams's and Margaret Marshall's common-sense views. His choice to replace Charles Fried -- who just stepped down to return to his professorship at Harvard Law School -- will say much about the governor's own definition of family values.