Romney seeks a bill to ban gay marriage

Aides to Governor Mitt Romney and House lawmakers are working out the details of a bill that defines marriage as a heterosexual institution based on child-raising and procreation, hoping that it will lead to a reversal of the Supreme Judicial Court's ruling that declared same sex marriages constitutional.

Eric Fehrnstrom, Romney's director of communications, confirmed yesterday that Romney aides had met with a number of House lawmakers to discuss the legislation.

"We think this an interesting approach and it's worth exploring," Fehrnstrom said. "There have been conversations between representatives of the governor's office and representatives of the speakers' office and members of the House. No course of action has been chosen."

The legislation is designed to offer SJC justices a clear, "rational basis" for establishing heterosexual marriage. One version of the bill being pondered by House leaders would be designed to show the court, in explicit and clear language, the rationale behind the current marriage laws, which make repeated reference to "husbands" and "wives," but do not establish why marriage is a heterosexual institution at present.

The courts routinely examine the so-called "rational basis" of statutes -- essentially the state's explanation for the law -- in making constitutional rulings.

But if the state can demonstrate no explicit rational basis for a law, or if judges determine that individual interests are more threatened than those of the state, the courts will overturn a law, as happened in the SJC's gay marriage ruling.

Some conservative legal scholars, including Hadley Arkes at Amherst College and Harvard Law School professor Mary Ann Glendon, have argued that if the court were offered a clear rational basis for keeping marriage a strictly heterosexual institution, the SJC might reverse itself.

Mary L. Bonauto, a lawyer with the Gay and Lesbian Advocates and Defenders, said the new legislative strategy comes too late.

"Every conceivable reason that could be advanced for justifying government discrimination against gay people was rejected" by the SJC in November's Goodridge v. Department of Public Health case. "The court rejected all justifications having to do with procreation, with child rearing, definitions of marriage and tradition, conserving resources, the proper powers of different branches of government, religion, morality, interstate conflict. It's too late. It's been decided."

The Nov. 18 SJC ruling legalizing same-sex marriages will take effect in May and has forced lawmakers and government leaders to take a position on the highly charged issue. House Speaker Thomas M. Finneran and Romney oppose same-sex marriage. Romney has suggested the enactment of a law guaranteeing benefits and protections for gay couples, but stops short of civil unions.

Since the ruling, gay marriage opponents have been operating on a number of tracks.

The Senate drafted a bill creating a civil union system that would provide gay couples some protections and benefits of marriage, but does not call the unions "marriage." The Senate has asked the SJC whether the legislation meets the standards of its ruling; lawmakers are awaiting its opinion.

Opponents are also pushing for a constitutional amendment banning gay marriage. The proposal is on the agenda for a joint House and Senate session, meeting as a constitutional convention, on Feb. 11. If the proposal passes this year and next, it would go before the voters in 2006.

Opponents of the gay marriage ruling see the passage of the bill under discussion by Romney's aides and House lawmakers as a key strategy to delay gay marriages until the voters get a chance to decide on the constitutional amendment. They apparently believe it would lead the courts to reverse the earlier SJC ruling.

"We see this bill operating in parallel track to the constitutional amendment," said Ronald A. Crews, president of the Massachusetts Family Institute, which is spearheading the camaign. "Its passage will give time for the amendment process to work."

Fehrnstrom would not identify who participated in the discussions over the legislative strategy. According to another strategist, Representative Brian P. Golden, a socially conservative Democrat from Brighton, has been involved in the conversations as Finneran's representative. Golden did not return a call made to his State House office seeking his comment.

Finneran, however, through a spokesman, issued a statement denying that Golden is representing him in the discussions with the governor's staff.

"Neither Representative Golden nor any other member is acting as an ambassador for me on this issue," Finneran said. "I have 159 colleagues, each of whom is struggling to address this complex and controversial issue in their own way."

In an interview earlier this month, Representative Eugene L. O'Flaherty, House chairman of the Joint Judiciary Committee and a top lieutenant to Finneran, said a plan was under discussion within the House leadership. He added in the interview that no decisions have been made about, for example, sending the bill to the SJC for an advisory opinion or simply voting on the bill and waiting for it to be tested in a lawsuit once signed into law.

"In this instance, the court looked at our marriage statutes . . . and found that the statutes had no rational basis" for limiting marriage rights to heterosexual couples, O'Flaherty, a Chelsea Democrat, said. "There is no statutory definition of marriage in Massachusetts. This bill would change that." He could not be reached yesterday for comment about the prospective legislation.

Gay marriage advocates, however, strongly disagree that the court issued its ruling solely because state laws lack a clear definition of marriage as a heterosexual union. Rather, they argued yesterday that the SJC issued its ruling because the constitution forbids depriving fundamental rights to a class of citizens, even if the gay marriage ban was rooted in a desire to foster strong families.

The justices "said the ban is so illogical and arbitrary that it impinges on the fundamental rights to marry, that it targets gay people," said Bonauto, the Gay and Lesbian Advocates and Defenders lawyer who successfully argued for gay marriages before the SJC. "Even if there's a legitimate interest being served, how does it transcend the harm it does to the disadvantaged class, gay couples?"