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Massachusetts’ House Speaker Thomas Finneran and Gov. Mitt Romney, supporters of a statewide ban on gay marriage
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Mass. lawmakers opposed to gay marriage devise alternate plan
Conservatives ask court to wait for impending ban
Published Thursday, 12-Feb-2004 in issue 842
BOSTON (AP) — Legislators in Massachusetts opposed to gay marriage are devising methods to circumvent the Feb. 4 court ruling that paved the way for same-sex marriages as early as May.
House Speaker Thomas Finneran, who opposes gay marriage, wants the high court to delay when the ruling takes effect until voters have considered a constitutional amendment defining marriage as a heterosexual union.
That measure has yet to be approved by the Legislature and wouldn’t appear on a ballot until 2006. But without the delay, the Democrat said Feb. 5, “You would have a period of time of complete legal chaos and confusion about the validity of those relationships.”
Under the 4-3 advisory ruling by the Supreme Judicial Court, gay marriages could begin in Massachusetts in mid-May. If voters were to pass the heterosexuals-only amendment, it is unclear whether marriages performed during the more than two years in between would be legally binding.
The court’s Feb. 4 opinion doused one compromise option, civil unions, ruling that they don’t go far enough because gay and lesbian couples are entitled to all benefits of marriage.
Opponents of gay marriage pin their hopes on part of the original court ruling that said state law provided no “rational” basis for prohibiting same-sex couples from the benefits of marriage.
Some lawmakers, including Rep. Eugene O’Flaherty, hope to craft a bill providing such a rational basis for excluding gay couples from marriage while conveying some new benefits to same-sex couples.
“The court has overstepped its boundary and has not let the legislative process unfold the way it has on other issues,” O’Flaherty said.
The much-anticipated opinion came a week before a Feb. 11 Constitutional Convention, where the Legislature was slated to consider an amendment backed by Gov. Mitt Romney that would define marriage as a union between a man and a woman.
“We’ve heard from the court, but not from the people,” Romney said in a statement. “The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage.”
The events have created a legislative dilemma for some uneasy lawmakers that could force them to choose sides on a contentious social issue.
But many legal experts argue that the court’s unequivocal advisory opinion leaves lawmakers with little wiggle room.
“The fat lady has sung and she’s singing the wedding march,” said Paul Martinek, editor of Lawyers Weekly USA. “It’s clear from reading the majority opinion that there’s no basis on which the SJC will OK anything other than marriage.”
Senate President Robert Travaglini, who will preside over the Constitutional Convention, said he needed time to talk with fellow senators before deciding what to do next.
“There is a lot of anxiety out there obviously surrounding the issue but I don’t want to have it cloud or distort the discussion,” Travaglini said.
The advisory opinion was issued about three months after the court’s original ruling that same-sex couples were entitled to all benefits of marriage. That ruling prompted the Senate to ask if civil unions would satisfy the court.
The Feb. 4 opinion left no doubt.
“The history of our nation has demonstrated that separate is seldom, if ever, equal,” four justices wrote. “For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain.”
Lawmakers who cheered the ruling said they welcomed the chance to stand up and be counted. Sen. Jarrett Barrios, who is gay, said the opinion treats gay and straight couples equally.
To get on the ballot, a marriage amendment would require support from at least 101 members of the 200-member Legislature during the current legislative session and the same number in the new, two-year session that begins in January.
There’s no guarantee the question will even come up. The question is eighth on a list of 11 proposed amendments. Ahead of it are other controversial proposals, including one lengthening the term of lawmakers from two to four years.
At least one aspect of the case may still be subject to debate: would marriages in Massachusetts have to be recognized legally in other states or by the federal government?
The federal government and 38 other states have enacted laws barring the recognition of any gay marriages in other jurisdictions. The Massachusetts court decision will likely lead to multiple lawsuits about whether gay marriage benefits can extend beyond the state’s borders.
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