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Civil union law sought

Romney says move would satisfy the SJC

Under pressure to respond to the Supreme Judicial Court's decision on gay marriage, Governor Mitt Romney and a top House lawmaker said yesterday that they believe the justices would be satisfied if lawmakers craft a civil union statute that grants many of the benefits of marriage but does not legally sanction same-sex marriage.

Romney and state Representative Eugene L. O'Flaherty, the House chairman of the Committee on the Judiciary, said separately that they do not support legislation to allow gays to marry and believe the justices signaled that a parallel system of civil unions for gays would meet state constitutional muster.

Talking with reporters outside his office, Romney said that the justices, by giving lawmakers 180 days to carry out their ruling, gave state legislators a window to put in place "a civil union type" statute.

"Under that opinion, I believe that a civil union type provision would be sufficient," Romney said. "I believe their decision indicates that a provision which provided benefits, obligation, rights, and responsibilities, which are consistent with marriage but perhaps could be called by a different name, would be in conformity with their decision."

"I expect that is what the supreme court was suggesting with the 180-day time period," the governor said.

O'Flaherty, a top lieutenant to House Speaker Thomas M. Finneran, said that he is seeking out constitutional specialists and other legal analysts "to see if my opinion is right" that a civil union statute could placate the justices.

"I think the SJC has given the Legislature some latitude with the 180-day piece to maybe go back and . . . to define marriage as the union between a man and a woman, and create in tandem a civil union that would provide the same rights," O'Flaherty said.

Meanwhile, Senate President Robert E. Travaglini said that he was considering making a formal Senate request to the SJC justices to expand on their reasons for granting the six-month stay. He said his legal advisers told him there is virtually no wiggle room to avoid a system by which city and town clerks will have to grant marriage licenses to same-sex couples next May.

"We're having trouble understanding why the court mentioned 180 days and suggested during that time frame that there is the capacity for the Legislature to take action that's going to affect that decision," he said.

In its ruling, the court said that "barring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." It stayed the order 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

It was the first high court in any state to endorse same-sex marriage, and it placed the state's elected officials in the treacherous position of interpreting a legal ruling on a politically explosive subject. It came, as well, as the Legislature rushed to wrap up its 2003 session by last night.

Proponents of gay marriage contend that civil unions represent "separate but unequal" status for same-sex couples because marriages are likely to be recognized by other states, and many of the benefits of civil unions would stop at the Massachusetts border. Full-fledged marriage, they point out, confers hundreds of federal, and possibly some state, benefits not available under civil unions.

Gay rights advocates, fearing a backlash against the decision, said they would return to the court to vigorously oppose any attempts to compromise the court's ruling.

"For any reason licenses aren't issued in 180 days from the court's decision, yes, we will be back in court," said Mary Breslauer, a member of the board of the Human Rights Campaign. "But I don't expect that to happen."

Romney seemed to be walking a tight line between both camps. The governor, who said the court ruling runs counter to the "3,000 years of recorded history" of marriage, appeared yesterday on NBC's "Today" and ABC's "Good Morning America."

Meanwhile, gay activists and their supporters sought to calm the frayed nerves of legislators. Some lawmakers grumbled about pushing an amendment to elect state supreme court judges or seeking to put in place a special constitutional convention, with elected delegates, that could speed up the amendment process. The last such convention took place in the early 1900s.

Conspicuously absent from the public debate is Finneran, an ardent foe of gay marriage. In an interview as he shuttled between the House and Senate chambers on the last day of the 2003 session, Finneran said yesterday that he has not read the court opinion because he is consumed with legislative business. He said he would not comment until after he reads the ruling over the weekend.

Outside legal specialists, including Laurence H. Tribe, professor of constitutional law at Harvard Law School, sharply dismissed any notion that the court was leaving Romney or the Legislature any option other than to accept gay marriage and implement its ruling.

"He must have read a different opinion and not the court's decision which I read very carefully yesterday," Tribe said, when told of Romney's interpretation of the justices' 4-to-3 decision.

"I think that the court could hardly have been clearer about the proposition that the basic definition of marriage has to be broadened for it to meet the requirements of the state constitution," Tribe said. "Certainly just listing benefits won't fit the court's theme."

"The Legislature is encouraged to look through the hundred different provisions of state law in which marriage enters the picture, and make sure the references to his and hers and other terms written with the assumption that marriage is between a man and a woman are made consistent with the court's own opinion," Tribe said. Looming over the Legislature is the push by opponents to force the lawmakers, meeting as a constitutional convention, to approve a constitutional amendment banning same-sex marriages.

The Legislature will meet as a convention on Feb. 11, but it is far from clear what will happen. The amendment would need approval by two consecutive legislative sessions. It could not be on the state ballot until at least 2006.

"It is to be expected that passions are high on both sides in the wake of the decision," said Democrat Jarrett T. Barrios, an openly gay state senator from Cambridge. He expressed confidence that after the SJC ruling, feelings will calm down on both sides and that gay marriage will be accepted by the general public.

Raphael Lewis can be reached at rlewis@globe.com.

Ross Ozer and his partner, Scott Gortikov Ross Ozer (left) and his partner, Scott Gortikov, took their 18-month-old son, Sam Ozer-Gortikov, to a celebration of the court ruling at the Old South Meeting House. Gortikov proposed marriage to Ozer after hearing of the decision. (Globe Staff Photo / Matthew J. Lee)
Dan Avila and Maria Parker Dan Avila and Maria Parker of the Mass. Catholic Conference denounced the ruling. (Reuters Photo)
Text of the decision
Gay population
The 2000 Census estimated there were about 19,000 gay couples in Mass., and about 659,000 nationwide, or less than 1 percent of households. Provincetown is the community in Mass. with the highest rate of gay partners, about 15 percent of households.
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