Constitutional bans on gay marriage die in Massachusetts
February 12 2004 12:00 AM ET
With scuffles breaking out inside the Massachusetts statehouse and hundreds of people chanting slogans for and against gay rights on Wednesday, lawmakers took up two separate proposed amendments to write marriage discrimination into the state's constitution and overturn a recent court ruling ordering equal marriage rights for same-sex couples. Both amendments failed to receive the necessary votes to pass. The votes bring the commonwealth of Massachusetts one step closer to complying with its top court's order to allow same-sex marriages no later than May 17.
The debate began with consideration of an unexpected modification to the proposed amendment to ban gay marriage outright, proposed at the last minute by house speaker Thomas Finneran. The modification would have allowed the legislature to adopt civil unions. After two hours of debate and accusations that the Democratic speaker was trying to hijack the process, that amendment was shot down in a 100-98 vote.
Debate then turned to a compromise amendment drafted by senate leaders that would have defined marriage as limited to one man and one woman but would also have constitutionally established civil unions in place of gay marriage; such unions would have become legal in Massachusetts in November 2006, the earliest that any amendment could be placed on a ballot for voter approval--a necessary step in the state's constitutional process. Under that proposed amendment, any same-sex couples married under the state supreme judicial court's November ruling would have been stripped of their licenses and reclassified as having entered into a civil union. The legislature voted 104-94 against the amendment. A two-thirds vote was needed put the Lees-Travaglini amendment to the constitution on the floor.
In arguing against the gay marriage ban, Sen. Dianne Wilkerson drew upon her experience as a black woman growing up in Arkansas, where the hospital did not allow her mother to deliver her children.
"I know the pain of being less than equal, and I cannot and will not impose that status on anyone else," a teary-eyed Wilkerson said. "I could not in good conscience ever vote to send anyone to that place from which my family fled."
Supporters of an all-out ban on gay marriage called for the legislature to respect what they claimed was "3,000 years of tradition." "Every society, every culture, every nation in all of recorded history, including Massachusetts, has up until this point at least defined marriage as one man and one woman," Finneran insisted.
Originally proposed in early 2003, the constitutional amendment to limit marriage in the state to opposite-sex couples took center stage last week after the state's supreme judicial court reaffirmed that its November ruling mandated nothing less than equal marriage rights for same-sex couples.
The constitutional convention reconvenes on Thursday and may yet consider an outright ban on same-sex marriage, without provision for civil unions. The convention may also end without any approved amendments, which would leave both the constitution and the court ruling intact.
Altering the Massachusetts constitution requires that an amendment be approved by the legislature in two consecutive sessions and then approved by a voter referendum. The earliest a referendum could be held on an amendment approved at the current constitutional convention is November 2006, giving same-sex couples more than two years to get married before any ban could take effect.
The Boston Globe reported Wednesday that Massachusetts's Republican governor, Mitt Romney, was seeking a means to block issuing any marriage licenses to same-sex couples even after May 17, a tactic also favored by Democratic house speaker Thomas Finneran. The two politicians--the Mormon governor and Roman Catholic speaker--have argued that allowing same-sex marriages to occur before voters can address the issue in November 2006 could result in legal chaos if the marriages are then banned under an altered constitution.
It is unclear, however, by what legal maneuver the governor could prevent the court's firm order from taking effect and licenses being issued, since the governor is legally bound to uphold the constitution and, by extension, the supreme judicial court's ruling. Furthermore, if no constitutional amendment is approved by the legislature, the politicians' argument may become moot, since no voter referendum will be scheduled in November 2006.
The legislature is tightly controlled by Democrats, who hold 169 of the 199 seats. (One seat is vacant.) The legislature is also heavily Roman Catholic. The votes will force lawmakers to finally declare their stand on a divisive social issue that most would prefer to avoid, especially with all 200 legislative seats up for grabs at the November elections.
If gay marriage takes place in Massachusetts, federal lawsuits would probably ensue as gay couples seek recognition in other states and by the federal government. While marriages performed in one state are normally recognized in other jurisdictions, 38 states and the federal government have approved laws or amendments banning recognition of gay marriage.
Busloads of people on both sides gathered outside the statehouse hours before the scheduled votes, waving signs, singing, and getting into arguments. "Just a few years ago a black person couldn't marry a white person, and now we realize that's wrong, and I think this is similar," said James Mumford, 27, an artist who was raised by two mothers.