Massachusetts house speaker Thomas Finneran said Thursday that state lawmakers will seek a way to stop the supreme judicial court's same-sex marriage ruling from taking effect until after voters have had a chance to weigh in on a constitutional amendment defining marriage as a heterosexual union. Under the high court's decision, which was affirmed on Wednesday, gay marriages could be performed in the state beginning May 17. The amendment, if approved by the legislature, wouldn't appear on a ballot for voters to decide upon until 2006. If the amendment were to pass, it is unclear whether marriages performed between May 17 and a 2006 ballot initiative would be legally binding. "You would have a period of time of complete legal chaos and confusion about the validity of those relationships," said Finneran (D-Boston), a vocal opponent of same-sex marriages. "There are some thoughts being given as to what we might do and how we might prevent some of the legal chaos that would inevitably result."
Asking the court for an extension of its 180-day stay is one option, Finneran said. But "rather than requesting it, there might be other things we can do," he said. Another option, he said, is passing a statute, which would take effect immediately, laying out a "rational basis" for outlawing gay marriage. In both its November decision and a clarification issued Wednesday, the high court noted that the legislature had never appropriately articulated in statute why gay couples should be barred from marriage.
The high court's 4-3 advisory ruling creates a legislative dilemma that could force many uneasy lawmakers to choose sides in a contentious social debate. 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 [high court] will OK anything other than marriage."
The court doused one compromise option, ruling that gay couples are entitled to all the benefits of marriage and that Vermont-style civil unions don't go far enough. The much-anticipated opinion came a week before a Massachusetts constitutional convention, scheduled for February 11, where the legislature will consider an amendment backed by Gov. Mitt Romney that would define marriage as a union between a man and a woman. "The spotlight is now shining brightly on the constitutional convention. I can't believe any lawmaker would want to run from this," said Rep. Philip
Travis (D-Rehoboth), who is sponsoring the amendment. The soonest a constitutional amendment could end up on the ballot would be November 2006. "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."
Senate president Robert E. Travaglini, who will preside over the constitutional convention, said he needed time to talk with fellow senators before deciding what to do next. "I want to have everyone stay in an objective and calm state as we plan and define what's the appropriate way to proceed," said Travaglini. "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."
The advisory opinion was issued about three months after the court's original ruling that same-sex couples are entitled to all the benefits of marriage. That ruling prompted the state senate to ask if civil unions would satisfy the court's mandate. Wednesday's opinion, however, left no doubt as to the court's position. "The history of our nation has demonstrated that separate is seldom, if ever, equal," four justices wrote in Wednesday's opinion. "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 welcome the chance to stand up and be counted. Sen. Jarrett Barrios (D-Cambridge), a supporter of gay marriage, said the opinion treats gay and straight couples equally. "Whatever your view is of marriage, it's my belief that fair-minded people oppose writing discrimination into the constitution," said Barrios, who is gay.
A marriage amendment will require the support of at least 101 members of the 200-member legislature during the current legislative session and the same number in the next two-year session, which begins in January, before going on the ballot. There's no guarantee the question will even come up next week. 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 banning recognition of gay marriages in other jurisdictions. The Massachusetts court decision will likely lead to multiple lawsuits over whether marriage benefits for same-sex couples can extend beyond the state's borders.