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Delay eyed on marriage amendment

Senate leader awaits SJC view on civil unions

By Raphael Lewis
Globe Staff / January 13, 2004

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State Senate President Robert E. Travaglini will delay next month's momentous vote on a proposed constitutional amendment banning same-sex marriages if the state's high court has not already issued its opinion on the constitutionality of a civil unions bill, top legislative officials said yesterday.

Travaglini has told several aides and colleagues that it would be premature to push forward until the Legislature learns whether the bill establishing civil unions for gay couples would satisfy the Supreme Judicial Court ruling of Nov. 18 on gay marriage. The Senate passed the civil unions bill last month and sought an advisory opinion from the high court to determine whether it met the conditions of the SJC's historic ruling that declared gays have the right to marry. All sides of the debate filed briefs yesterday with the SJC. The court's ruling declaring gay marriages constitutional is set to go into effect May 17.Ann Dufresne, a spokeswoman for Travaglini, confirmed that the Senate president would put off the Feb. 11 debate on the proposed constitutional amendment if the court does not rule on the civil unions bill first.

"The whole point of the advisory opinion is to seek guidance on the court's ruling, so it only makes sense not to preempt the court," she said.

Such a delay could be a tactical setback for gay marriage opponents, whose lobbying efforts are focused on the Feb. 11 vote. Travaglini delayed action on the amendment last fall and Thomas Birmingham, former president of the Senate, put it off two years ago.

Ronald A. Crews, a former Georgia lawmaker spearheading the grass-roots campaign in support of the amendment, urged Travaglini to press forward with the constitutional vote, regardless of the SJC.

"It would be my hope and encouragement that we would move forward with the vote regardless, and we are saying that in our amicus brief to the court," said Crews, president of the Massachusetts Family Institute.

House Speaker Thomas Finneran, a gay marriage opponent, also favors a February vote. "I'm not sure that waiting for further either instruction or clarification from the court is necessary," Finneran said yesterday. "The members have now had an opportunity to read and reread the decision and to begin to think out their options." However, Travaglini, as president of the Senate, controls the timing of the vote.

It is unclear how long the SJC will take to render its opinion of the Senate's civil unions bill. Even if Travaglini delays the constitutional convention, however, lawmakers can reschedule another meeting to consider the amendment.

Unlike in November, when Travaglini first put off the constitutional convention, the eyes of the nation are now fixed on Beacon Hill.

Yesterday, two national gay rights groups announced that they are organizing a "Freedom to Marry" week of rallies and protests to take place from Seattle to Tampa, and from Los Angeles to Ithaca, N.Y., coinciding with the Legislature's scheduled debate.

Robin Tyler, executive director of the Equality Campaign, a nonprofit group organizing the rallies, said the events will take place regardless of the political maneuverings.

"What the Massachusetts Legislature does is very important, it's critical," Tyler said. "I hope that Massachusetts has the courage to do the right thing. Fifty years from now, I believe it will be seen in the same light as segregation, and Massachusetts in the perfect position to make history in this."

Gay rights advocates say the Senate's civil union bill would create a "separate but equal" system for same-sex couples, not unlike the system of segregation that divided blacks and whites. Opponents say that marriage is an inherently heterosexual institution.

Representative Philip Travis of Rehoboth, the chief sponsor of the proposed constitutional amendment, declined to comment yesterday. But in the past, Travis has said that a vote Feb. 11 is crucial because conducting a debate after that could be difficult, given that the Legislature will be focused on budget negotiations soon after.

Representative Vinnie deMacedo, a gay marriage opponent and cosponsor of the amendment, said the convention should go forward because of the timeline on the original gay marriage ruling.

"Given the SJC's short time frame, I think it's imperative that we move sooner rather than later," deMacedo said. "The problem is that the Legislature hadn't spoken on this issue in the first place. Regardless of how this falls, this thing must move forward in my opinion."

Laurence Tribe, a constitutional scholar at Harvard Law School and an advocate of legalized gay marriage, said he is confident the justices will render an opinion on the Senate bill in time for the constitutional vote to take place on schedule.

"I think it's likely to be relatively quick [and] I would be somewhat surprised if they did not do it before the February date," Tribe said. "The issue is not a genuinely difficult one. Even though the initial question was complicated, once that has been resolved, the question of whether there was wiggle room left turns out to be overwhelmingly straight forward."

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, predicted that lawmakers will end up confronting the constitutional amendment.

"This issue is going to be debated and voted on this year regardless of when the SJC renders its decision." she said.

To amend the constitution, a majority of the Legislature, meeting in joint session, must approve a proposed amendment in two consecutive sessions. If the full complement of lawmakers is present on both occasions, that means 101 of 200 must vote in favor of the amendment both this year and next. After that, a majority of voters in a statewide ballot referendum in 2006 would have to approve the proposed amendment for it to become law.

Even if the SJC returns its verdict before Feb. 11, there is a strong possibility that the gay-marriage proposal would not come up for a vote that day. According to the Senate clerk's office, there are 10 proposed amendments up for debate this year, and the gay marriage ban is number eight on the list.

The Associated Press contributed to this report.

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