WHAT WILL THE legislature do? Or, more to the point, what will House Speaker Tom Finneran do? That’s the question that many observers are asking in light of Tuesday’s decision by the Supreme Judicial Court that it is unconstitutional to bar same-sex couples from marrying in the Commonwealth of Massachusetts. The decision gave the legislature 180 days to "take such action as it may deem appropriate in light of this decision."
We can only speculate on what actions Finneran might deem appropriate — on Tuesday afternoon, he declined to comment publicly on the SJC decision; his office issued a statement saying that he hadn’t yet read the ruling. But in light of the court’s findings, it seems the appropriate course for legislators would be to enact a pending civil-marriage bill granting that right to same-sex couples. Or they could rewrite the state’s civil-marriage statute to make it clear that two people of the same gender can wed. Or, more simply, legislators could pass legislation changing the language on the state’s marriage-license applications.
Says Mary Bonauto, the civil-rights project director of Gay and Lesbian Advocates and Defenders (GLAD), who litigated the plaintiffs’ case before the SJC in March: "Frankly, the real option for the legislature is to fix up and clean up the paperwork."
State Senator Jarrett Barrios, one of three openly gay state legislators, largely agrees. "I’ve spoken to about 15 lawyers, and all agree that this means that the court is remanding the decision to the Superior Court, but delaying implementation to allow the legislature to effectuate the decision," Barrios says. In other words, that means the legislature will have to authorize changing the language of the marriage-license forms at city and town halls, which could require an appropriation. Legislators might mandate training for town and city clerks, which could also cost something. But ultimately, as Barrios points out, "This decision was based on the Massachusetts Constitution. So no statute could be passed to change this decision or its outcome. None that I’ve seen, anyway."
But is it really so simple? This is, after all, the Massachusetts legislature that we’re talking about — a body not exactly known as a bastion of progressive thought. For the past three legislative sessions in a row, in fact, the state Senate has passed a bill that would make it legal for municipalities to extend health-care benefits to the domestic partners of their gay employees. Yet the House, under Finneran’s leadership, has refused to act on the measure even though a majority of state representatives supports it. This same domestic-partnership bill — which would grant same-sex couples a fraction of the rights associated with civil marriage — is the subject of yet another committee hearing as you read this. If that’s not bad enough, there’s also the pending legislation that would wipe out antiquated sex laws banning everything but traditional intercourse between a man and a woman. For 30 years, conservative legislators have successfully thwarted the effort; predictably, the latest version died in committee in 2002. With these same politicians now thrust into the center of the culture-war maelstrom, can we really expect them to sit back and do nothing?
ARLINE ISAACSON, for one, is worried. As president of the Massachusetts Gay and Lesbian Political Caucus, Isaacson was an integral part of the 17-year lobbying effort that helped push the 1989 civil-rights bill protecting gay men and lesbians through Beacon Hill. She knows her way around the Massachusetts State House. And she knows how state legislators think. Not only will they not embrace the SJC decision, she says, but she doubts the legislative body will take the much smaller, but still affirmative, step of changing the language of state civil-marriage licenses to conform to the court’s ruling. "We know they’ll never do that," she says. "Not a chance."
In short, Isaacson contends, the legislature is simply "much more conservative than the public on this issue." And so, she predicts that legislators will "try to thwart the decision by passing the anti-gay constitutional amendment."
Sponsored by State Representative Philip Travis, the amendment would alter the Massachusetts Constitution to define marriage as "only the union of one man and one woman." (Currently, the state Constitution contains no definition of marriage.) Under the proposal, anything that might give same-sex couples the "legal equivalent" of marriage would also be prohibited. In order to become law, the amendment must win a majority vote in both houses at Constitutional Conventions held during two separate legislative sessions; after that, it must be approved by voters. On November 7, Senate president Robert Travaglini, who chairs the Constitutional Convention, or Con Con, as it’s known, postponed the event scheduled for November 12 to February 11. At this point, Isaacson believes, there are not enough votes to squash the anti-marriage measure. Still, if it were to move forward, legislators would have to pass the amendment a second time during the 2005-’06 legislative session. Therefore, the earliest it could appear before Massachusetts voters is in November 2006.
To date, every such ballot initiative put to voters around the country has won handily. And despite polling data showing that a majority of Massachusetts residents think gay and lesbian couples should be allowed to wed — indeed, an October poll funded by the Freedom To Marry Coalition of Massachusetts determined that as many as 59 percent of Bay State voters support the notion — Isaacson doubts the constitutional amendment could be defeated. "If the proposal were to go to the ballot today," she says, "we’d probably lose." She attributes this partly to societal norms not moving "far enough, fast enough" in favor of gay men and lesbians. More importantly, though, Isaacson anticipates that opponents will ramp up their already intense lobbying effort on the Hill. Rather than debate the merits of gay marriage, she says, opponents from the "radical right" will wage a ballot initiative based on fear-mongering and hatred.
On Tuesday, Governor Mitt Romney issued a strongly worded statement disagreeing with the SJC decision, saying, in part, that marriage "is a special institution that should be reserved for a man and a woman" and pledging to work with the legislature to amend the state Constitution to ban same-sex marriages. During a press conference the same day, he again mentioned backing an amendment to the Constitution. Whether he files his own bill or supports Travis’s, this was the first time that Romney had said publicly he would work to change the state Constitution. The governor’s stark words this week, as Isaacson notes, are "bad news" because Romney "carries a lot of clout" with some legislators at the State House.
Although Isaacson fears that the state Constitution could easily end up amended in three years’ time so as to ban the civil marriages of same-sex couples, the possibility raises a bizarre scenario: the state would have to undo the thousands of marriages of gay and lesbian couples who would, presumably, have gotten hitched in the interim. "They’ll still be married," Barrios says, regardless of whether the legislature does eventually succeed in outlawing them.
According to the 2000 US Census, there are more than 70,000 same-sex couples in the Commonwealth. Even if just half of them decide to tie the knot, the prospect of ordering 35,000 legally wed pairs to divorce seems more than a little absurd. Barrios rather sarcastically raises the possibility of "the governor and others" spending taxpayer dollars to "hire lawyers and private investigators to force people to sign divorce papers." How else, he wonders, would the state invalidate a marriage?
BUT WHAT ABOUT civil union, the poor cousin to civil marriage? Will legislators now rush to pass a civil-union bill to prevent lesbian and gay couples from getting the full rights and privileges of civil marriage? State Senator Cheryl Jacques, who is leaving Beacon Hill next year to head the Human Rights Campaign, a Washington, DC–based gay-rights organization, says she thinks the SJC ruling means that the court will not find a separate-but-equal solution constitutionally acceptable. But former Senate president Tom Birmingham, who is now a lawyer with the Boston-based firm Palmer and Dodge, believes just the opposite.
When Birmingham read the SJC decision on Tuesday, he homed in on one particular phrase. In its findings, the court states that barring an individual from the "protections, benefits, and obligations of civil marriage" solely because that person would wed someone of the same gender violates the Constitution. The words "protections, benefits, and obligations" immediately struck Birmingham as "ambiguous." Why use them, he asks? He then continues, "I’m sure those words were chosen very carefully. And some legislators could interpret them as an invitation by the court to do Vermont-style civil unions."
Therefore, Birmingham — and others — wouldn’t be surprised if legislators were to make use of the next 180 days to rally around a civil-union bill currently filed on Beacon Hill. "My guess is legislators would much prefer civil unions over civil marriage," he says. And it’s a fair assessment. Last September, Senate president Robert Travaglini took the unusual step of publicly announcing his support for Vermont-style legislation that would grant same-sex couples some of the benefits and privileges that flow from marriage — such as the ability to include a spouse on a family health plan and make health decisions for a spouse who has been hospitalized. And earlier this month, John Rogers, the House Ways and Means chair and a past foe of gay rights, publicly confirmed that he and a handful of his House colleagues have been quietly working behind the scenes this fall on a civil-union measure similar to the one enacted in Vermont. Now that the SJC has handed down its ruling, Representative Byron Rushing, who’s sponsoring a bill that would grant same-sex couples the right to marry, expects to see even more support on the Hill for civil unions. As he puts it, "It’s possible that I’ll walk up to the State House and find dozens of born-again civil-union supporters."
Civil unions stop well short of what marriage grants, however. And advocates like Isaacson and Josh Friedes of the Freedom To Marry Coalition adamantly oppose such a compromise. Especially now, since, as Friedes says, "there’s an incredible window of opportunity to get legislators to understand the importance of civil marriage for gay families." He and his fellow advocates have already begun laying the groundwork. This past Monday, for instance, at a midday State House briefing, Friedes led a group of 30 or so legislators and aides through the nuts and bolts of the Coalition’s October poll. While laying out the overwhelmingly favorable conclusions — that a strong majority of Massachusetts voters believes the rights of civil marriage should be available to all residents, and that an equally strong majority rejects the current constitutional amendment — audience members seemed rapt in their attention. They sat with chins in palms. They feverishly scribbled notes. They nodded vigorously in acceptance.
Only once did the subject of civil unions distract from the brilliance of civil marriage, when an aide wondered aloud if it was possible that poll participants "confused civil marriage with civil unions." Friedes and the pollster, Bob Meadows, dismissed the possibility, since 90 percent of respondents had identified themselves as either married, widowed, or divorced. In other words, they said, participants had a firm understanding of what the term "civil marriage" means. But the aide didn’t seem quite convinced. "I’m not so sure that people are making the distinction between the two legally," he responded. After all, for the general public — just as for many in the legislature — "civil union" has become something of a euphemism for gay marriage.
WHATEVER HAPPENS in the months ahead, one thing seems certain: there will be an ugly, bruising legislative fight. By all accounts, the backlash set in motion by the SJC decision has only just begun. Backers of the constitutional amendment are looking to ratchet up their own rhetoric. There are the organized appeals from the Massachusetts Family Institute, whose president, former Georgia legislator Ron Crews, knows well the ins and outs of effective campaigning. There are the organized appeals from the Massachusetts Catholic Conference, whose leader, Boston archbishop Sean O’Malley, has reinforced the Church’s stalwart opposition to same-sex marriage.
Given all the pressure, legislators on the fence may simply crumble and hide. Those opposed to civil marriage for same-sex couples will almost surely try to muddy the waters. Or to suggest that the SJC didn’t say what it actually said. Representative Rushing cogently sums up the sentiment among gay-rights advocates and their legislative allies: "The best way to describe what we will have to work against is mischief."
But in the end, it seems, advocates might say, "So be it." For in the end, as GLAD’s Bonauto says, "We now have a constitutional ruling from the court saying that equal means equal, and there’s no exception in the Constitution for gay and lesbian citizens. That is the bottom line."
Kristen Lombardi can be reached at firstname.lastname@example.org
Susan Ryan-Vollmar can be reached at email@example.com
Issue Date: November 21 - 27, 2003
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