Weld, 2 ex-AGs urge passage of gay marriage law

Saying the "rule of law and the legitimacy of the courts" are at stake, former governor William Weld, two former state attorneys general, and two top lawyers will deliver a letter to all 200 legislators today, urging them to enact into law the Supreme Judicial Court's ruling allowing gays to marry.

The letter, signed by Scott Harshbarger, attorney general from 1991 to 1999, and James M. Shannon, his predecessor, says that efforts by opponents of same-sex marriage to create an alternate civil union system have "no legal justification."

"We see the SJC's ruling as unequivocal: The existing ban on marriage for gay people is unconstitutional," reads the letter, authored primarily by Harvard constitutional scholar Laurence Tribe. ". . .We urge each of you as members of a coordinate branch of government sworn to uphold the constitution, and the rule of law, to use the remainder of the time period in the court's stay to take any and all steps possible to facilitate the orderly issuance of marriage licenses to qualified same-sex couples."

The letter will arrive on lawmakers' desks as they return to session today after the winter holidays and prepare to take up the issue of the legal status of gay relationships. There is deep division among legislators over how to proceed, and a debate over the interpretation of the court's Nov. 18 decision, which is scheduled to take effect in May.

The state Senate has asked the court for an advisory opinion on whether a bill that would estabish civil unions for gay couples, while reserving marriage for heterosexual couples, would conform with the ruling.

Next month, both the House and Senate will meet to consider a proposed constitutional amendment that would ban same-sex marriage, but that amendment would take years to enact.

In addition to Harshbarger, Weld, Shannon and Tribe, Boston Bar Association president Renee M. Landers signed the three-page letter. While their views on the issue had already been reported, the letter marks an unusual lobbying effort by high-profile former state officials on a current policy issue on Beacon Hill.

It's not clear how much influence the group, which offers a detailed legal analysis of the ruling in the letter, will have on lawmakers, some of whom are already describing the votes they face over gay marriage as among the toughest in their careers.

Ronald A. Crews, president of the Massachusetts Family Institute, which is rounding up support to overturn the court's ruling, downplayed the letter's significance.

"We know where they stand on this issue. That is no news," Crews said. "We knew where they stood before this letter, but at least they are acknowledging that the debate is now before the Legislature, and I believe that is the proper venue."

Tribe, in an interview, said the letter is intended to urge lawmakers on both sides of the issue to pave the way and change existing state laws to bring them into compliance with the ruling, which the court stayed for six months to give the Legislature time to act. While he said gays would have the right to marry anyway after that period, Tribe said making the laws consistent with the court decision would bring about clarity.

"The clock is running," Tribe said. "After that period, lawful marriage licenses can be given to same-sex couples, and it would be unlawful to deny them that. But there are hundreds of laws on the books that refer to husbands and wives that are not consistent with what the court has done."

Tribe said he believes many legislators remain confused by the ruling and the cacophonous debate that has followed. For example, Governor Mitt Romney and Attorney General Thomas Reilly have pointed to what they view as room for interpretation in the decision. They have suggested the court may be satisfied with enactment of a civil unions bill.

The letter disputes that view, quoting the ruling to reinforce their assertion that civil unions would not go far enough.

The judges, in the decision, wrote: "The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens."

"This is a lot more user-friendly than a 30-page ruling," Tribe said. "We have included key quotations, but they are not selective quotations. There is not a word in the ruling that would allow for civil unions being OK."

Supporters of the SJC's landmark decision enthusiastically welcomed the letter, saying the bipartisan signatories, all with legal credentials, should help to settle any questions as to what exactly the ruling meant.

"I believe that any time current or former elected officials with the legal pedigree that these writers have speak about the constitution and remind current elected officials of our responsibility of respecting the constitution and the rights of all citizens of the Commonwealth, it has force," said state Senator Jarrett T. Barrios, a Cambridge Democrat who has said he intends to be among the first to apply for a marriage license in the spring.

State Senator Michael R. Knapik, Republican of Westfield, said gay-marriage opponents like himself will take note of the letter, given that Weld is a former US attorney and that Harshbarger and Shannon have both served as attorneys general. But he said he is not convinced it will change legislators' views.

"I do think it's significant; they are extremely significant individuals, and this is certainly done to illustrate to the public that this is not happening in a vacuum," Knapik said. "Whether it changes anyone's mind is another thing. I'm not so much swayed by that type of thing because I am elected by my constituents to exercise my judgment, not someone else's."

Shannon, interviewed yesterday, said he signed the letter because he is worried that the government's basic principle of the separation of powers is at stake in the gay marriage ruling. If the Legislature chooses to ignore the decision, he said, one of the most fundamental principles of government would be undermined and, thus, endangered.

"If people feel so strongly about this decision that they want to upend it, as with any constitutional decision by the court, the only way to do it is by amending the constitution," Shannon said. "I don't think that's advisable, but that's the remedy. But whatever your position on the issue, the responsible member of the Legislature will do what the court has said is required."

The Legislature is set to meet Feb. 11 to consider a proposed constitutional amendment, sponsored by State Representative Philip Travis, a Rehoboth Democrat, that would reserve civil marriage for heterosexual couples. Amending the Massachusetts Constitution, however, takes at least three years because a majority of the 200 lawmakers in the Legislature must approve of the amendment in two successive sessions, and then voters must approve it in a subsequent statewide referendum.

Because that process is so lengthy, gay-marriage opponents have discussed passing a bill this spring to try to block the ruling, at least temporarily, while the constitutional process moves forward.

Mary Bonauto, the lead attorney on behalf of seven gay and lesbian couples in the SJC case, said the letter by Weld and the others may discourage lawmakers from pursuing such a course.

"Right now, folks have been told that the Senate is seeking clarification, and others have taken the position that the decision can be ignored," Bonauto said. "From our perspective, it's better to clarify the confusion sooner rather than later. Otherwise, some legislators simply shrug their shoulders and are whipsawed between this perspective and that perspective."