Focus turns to Reilly in gay-marriage fight

Pressure mounted yesterday on Attorney General Thomas F. Reilly over a proposed citizens' initiative to ban same-sex marriage, with two former attorneys general and several dozen lawyers urging him to rule the effort unconstitutional.

Reilly has until Sept. 7 to certify the ballot question, which foes of same-sex marriage hope will go before voters in the 2008 election. The pressure on Reilly, including a legal brief filed by same-sex marriage opponents, puts him in a delicate situation, as he begins a campaign for governor.

The Legislature set Sept. 14 yesterday as the date it will debate a separate measure, aimed at the 2006 ballot, that would outlaw same-sex marriage and establish civil unions. The early date dismayed gay-rights advocates who had expected far more time to lobby lawmakers.

''The September date for the next Constitutional Convention is unfortunate," Marty Rouse, campaign director for MassEquality, said in an e-mail. ''We now have only three short weeks."

Ann C. Dufresne, a spokeswoman for Senate President Robert E. Travaligni, said Travaglini wants to deal with same-sex marriage so senators can move on to such issues as healthcare and economic stimulus.

A change to the state constitution requires the support of a majority of lawmakers in two successive sessions, then a majority of voters at a statewide ballot.

As for the 2008 initiative, a letter to Reilly signed by former attorneys general James M. Shannon and Scott Harshbarger and nearly 80 lawyers from Boston's top law firms echoes an argument that gay-rights groups have already made: that the state Constitution disallows any ballot question that would reverse a judicial decision. (The Supreme Judicial Court legalized same-sex marriage in a November 2003 ruling.)

''We know that the stakes are high and emotions on both sides run deep," the letter states. ''We feel confident, however, that in this instance the plain language of the Massachusetts Constitution makes the decision a straightforward one."

The letter was crafted by the Massachusetts Gay & Lesbian Political Caucus and other gay-rights advocates, but it was designed to show that a variety of legal professionals, including some who support Reilly's bid for governor, agree that the initiative is unconstitutional, said Arline Isaacson, cochairwoman of the caucus.

''It's not a political issue; it's a legal issue, plain and simple, in which many well-respected attorneys side with us," she said.

A group of law professors has sent Reilly a similar letter urging him to reject the 2008 initiative, Isaacson said.

Opponents of same-sex marriage launched the petition effort two months ago as an alternative to the pending 2006 effort, which has lost support since lawmakers approved it last year. If Reilly certifies the question for 2008, supporters would need to collect 66,000 signatures and then win the support of at least 51 lawmakers in two legislative sessions to get it on the ballot.

Activists on both sides are lobbying Reilly on the one-sentence ballot question, which would ask voters whether the state should define marriage ''as only the union of one man and one woman."

The group Gay and Lesbian Advocates and Defenders filed a brief with Reilly's office urging him to reject it for two reasons: because the state Constitution prohibits ballot initiatives that would reverse judicial decisions and because of its similarity with an unsuccessful ballot question in 2002. (The state constitution forbids the certification of any initiative if it is ''substantially the same" as one certified in either of the previous two election cycles.)

A committee formed by groups opposed to same-sex marriage, voteonmarriage.org, filed a rebuttal, arguing that there are cases in which a citizen's petition can pertain to a judicial decision. The group believes the similarity with the previous ballot question is irrelevant, because that initiative was blocked by the Legislature.

Kris Mineau, president of the Massachusetts Family Institute, said yesterday that he believes there is ''sufficient case law" for Reilly to certify the measure.

One lawyer who signed the letter from the legal community, Boston Bar Association president M. Ellen Carpenter, said yesterday that the proposed ballot initiative would violate the state constitution. ''This is just not an issue that meets the standard," she said.

MassEquality, a group advocating equal marriage rights for gays and lesbians, wrote to Reilly's office last week to assert that the initiative would also run afoul of the equal-protection clause of the US Constitution.

Reilly has not always supported same-sex marriage, but says he accepts the SJC's decision. His primary rival for the Democratic gubernatorial nomination, Deval Patrick, is considered an advocate for gay rights.

Reilly spokesman Corey Welford said yesterday that the attorney general's office is ''continuing to review this information to determine whether the initiative meets constitutional standards."