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10 years' work led to historic win in court

On a late summer's day in 2000, two dozen gay activists gathered in a cramped downtown conference room. There was excitement in the room, and the sense that this was a historic moment. But there was also trepidation.

Mary Bonauto, a sandy-haired, cerebral woman, and an attorney at Gay & Lesbian Advocates & Defenders, did most of the talking. She told the group that she was ready to bring a lawsuit on behalf of gay and lesbian couples seeking marriage licenses in Massachusetts. Vermont had just enacted civil unions, and some Massachusetts legislators were seeking to pass a law to prohibit marriage benefits for same-sex couples.

Bonauto told the group that Massachusetts, with the broad protections provided by its constitution and a Supreme Judicial Court steadily expanding the notion of family, was the ideal state in which to seek marriage licenses.

Most in the room greeted her pitch with joy, urging GLAD to move forward.

Others were not sure. Activists who had spent a decade making inching progress toward gay and lesbian benefits in the Massachusetts State House worried that a lawsuit would unleash a huge, angry backlash, and speed passage of a constitutional amendment to ban gay marriage.

Arline Isaacson, a veteran gay-issues lobbyist who had built warm relations with many lawmakers on Beacon Hill, was filled with foreboding.

"Shouldn't we wait a few years?" she asked the group.

But GLAD did not wait. In April 2001, Bonauto and her colleagues filed suit on behalf of seven same-sex couples who had been denied marriage licenses. And last Tuesday, the court handed them a major victory, deciding that those couples have the constitutional right to marry.

The campaign to win that unprecedented ruling was driven by a hopefulness that sprang from court victories in Hawaii and Vermont expanding the rights of gay and lesbian couples. It was also driven by a fear that conservative opponents on Beacon Hill would outrace them, and win an amendment to the constitution rendering the lawyers' efforts useless.

The case demanded careful calculation. The timing had to be right; the plaintiffs had to look like friendly next-door-neighbors; the strategy had to be tailored to avoid a decision like Vermont's, which stopped short of marriage.

`We can't do this for you'

For more than a decade, Bonauto had steadfastly resisted this path.

Requests from couples seeking her help to marry had been coming across Bonauto's desk since the day in 1990 she arrived at GLAD, a nonprofit law practice. Bonauto, 42, a native of the Hudson River city of Newburgh, N.Y., refused to take the cases. The late 1980s had seen some setbacks for gays and lesbians, including the 1986 Bowers v. Hardwick US Supreme Court decision upholding Georgia sodomy laws. Her reluctance frustrated some, but Bonauto was convinced the nation was not ready for gay marriage.

"I remember talking to these people and feeling really cheesy and lame for having to say to them, `We can't do this for you,' " she said in an interview. "But we needed to build precedents of respect for gay and lesbian people."

Then, out of the blue, came Hawaii. No one at GLAD was watching the 1990 lawsuit brought by three couples who sought the right to marry there, or anticipated the Hawaii Supreme Court's 1993 ruling that the state's failure to recognize same-sex marriages amounted to gender discrimination. It was a ruling which "nobody could have imagined," Bonauto said.

After the Hawaii decision, Bonauto and a group of New England gay rights attorneys began meeting regularly, discussing whether to bring a similar suit in this region. In 1996, they decided to sue on behalf of three couples who wanted to marry in Vermont. The state seemed ripe: It had allowed a lesbian to adopt her partner's biological child; the lawyers' research had shown the Vermont Constitution promised broad protections for citizens; and its culture promoted "rugged individualism."

The Vermont case, however, also carried risks. The Hawaii ruling had touched off fiery debate, as opponents of gay marriage flocked to the state to fight for a constitutional amendment to ban it. Eventually, voters approved the amendment, the first of many such measures across the country. That made Bonauto anxious.

Mixed feelings from Vt.

Still, they went forward. Vermont lawyers Susan Murray and Beth Robinson brought the case in 1997, and Bonauto was co-counsel. When the Vermont Supreme Court ruled on Dec. 20, 1999, that extending equal rights to same-sex couples was "simply . . . a recognition of our common humanity," the GLAD offices were thrown into chaos. As the decision rolled out of the fax machine, no one was quite sure if they had won or lost.

Eventually, it became clear that the court had agreed that the plaintiffs deserved the benefits and protections of marriage, but stopped short of granting them marriage licenses, leaving the task of correcting the inequities to the Legislature.

"I was mad," Bonauto said. "I was thrilled we were still in the game, and they had this beautiful language in there about the humanity of gay people, but I couldn't believe they had done something that I thought was a political judgment. I had never heard of segregating the word marriage from its rights and protections."

The lawyers debated whether to appeal the ruling or work with the Legislature, and decided "it was time to let people's lives go on in Vermont," said GLAD staff attorney Jennifer Levi. After impassioned lobbying by both sides, the Vermont Legislature established civil unions.

While disappointing to some gay rights groups, Vermont had been enough of a victory to provoke intense concern among opponents of same-sex marriage in Massachusetts. They knew they had to do something.

"After Vermont, we knew that a suit would be filed in Massachusetts, New Jersey, or California," said Ronald A. Crews, president of the Newton-based Massachusetts Family Institute, a group which promotes conservative social causes.

Since 1999, his organization had been trying to win passage of legislation, sponsored by Representative John H. Rogers, Democrat of Norwood, to define marriage as the union of a man and a woman. After Vermont, Crews and his allies, including the Massachusetts Catholic Conference, went for a more sweeping solution, and launched an effort to amend the Massachusetts Constitution.

Meanwhile, after the Vermont decision, GLAD was besieged with calls to bring a marriage suit in Massachusetts. Bonauto, who lives in Maine, recalled being cornered while picking lettuce in a grocery store by someone who wanted to know what was taking so long. And she and other gay rights attorneys were aware of the growing efforts of their foes on Beacon Hill.

It was time.

"We knew our opponents wanted to change the constitution," she said. "We knew we'd be talking about marriage anyway. Hawaii ensured that, and Vermont double-ensured that. We didn't want to lose this opportunity."

Making their case

And so, after that August meeting in 2000, where most of the two dozen community leaders gave Bonauto a green light, she and her colleagues set about preparing the lawsuit.

The plaintiffs, who would serve as the public face of the lawsuit, were chosen carefully. They had to be varied in age, ethnicity, and profession. They had to be well-spoken, but not too political. They had to be longtime couples who had been faithful to one another. They had to stand up to rigorous criminal background checks, and to convince the lawyers that there were no skeletons in their closets.

GLAD had no shortage of volunteers, Levi said. The real problem was whittling the group down to the seven couples.

Whittling down the legal arguments took hundreds of hours. Bonauto and her colleagues had to find a way to avoid the Vermont outcome, to win a judgment that went all the way -- not just civil unions, but full-fledged marriage.

In Vermont, a major part of the plaintiffs' case had focused on the rights and protections given to married couples, such as hospital visitation and tax benefits. That focus had left room for the Legislature to give gay and lesbian couples some of the rights and protections of marriage, without granting marriage itself. To avoid that in Massachusetts, GLAD lawyers had to convince the court that marriage is more than the sum of its protections.

"We spent more time in Massachusetts talking about how marriage is a basic civil and human right," Bonauto said. "It cannot be splintered into state and federal protections. We talked about what marriage is in our culture."

In April 2001, GLAD lawyers and the seven couples stood before reporters in a ballroom at the Omni Parker House hotel to announce they had just brought a suit against the Massachusetts Department of Public Health, which had denied them marriage licenses.

The battle had begun in earnest, but Mary Bonauto would not be there to argue its early stages: She was pregnant with twins.

The day after GLAD filed suit, Crews and a dozen of his local and national allies held a crisis meeting at the downtown offices of the Massachusetts Catholic Conference. They wanted to bolster the defense case, being handled by the attorney general, so they assigned lawyers to write friend-of-the-court briefs. But they also wanted to head off their opponents, and intensified their efforts to push through the constitutional amendment banning same-sex marriage.

"This was the ultimate legal remedy," Crews recalled during an interview with the Globe. To put the amendment before the public for a vote, Crews and his allies gathered 100,000 signatures. Then they needed 50 of the 200 legislators on Beacon Hill to vote, in the 2002 legislative session, and then again in 2003, to place the question on the 2004 statewide ballot. The race was on.

"We thought, for sure, `Now the Legislature is going to have to vote on this issue,' " Crews said.

The case was first heard in Suffolk Superior Court in March 2002. Assistant Attorney General Judith Yogman put forth the state's defense. The attorney general's office declined to discuss its strategy for the case.

Levi, pregnant herself by this time, was anxious for days before oral arguments were scheduled to be heard, unable to sleep.

"The right to marry is fairly meaningless if it doesn't include the right to marry the person you fall in love with," she told Judge Thomas Connolly. The courtroom was crowded, with the seven plaintiff couples seated in the jury box. GLAD lawyers had prepared their plaintiffs for a loss, telling them the case was going to be appealed all the way to the SJC. Still, when Connolly rejected their claims in May, ruling that "procreation is marriage's central purpose," they were devastated.

Meanwhile, opponents of same-sex marriage knew Connolly's ruling would be challenged, and that they had to press on for an amendment, fearing a high court reversal. They were optimistic -- their unofficial polls of the 200 lawmakers showed they had the votes in 2002 to clear the first hurdle. However, they had not foreseen that then-Senate President Thomas F. Birmingham, a gubernatorial candidate with close ties to gay rights lobbyists, would thwart them. In July 2002, Birmingham used a procedural maneuver to kill the amendment in a matter of minutes during a special combined session of legislators. Rather than allowing a vote on whether to place the amendment on the ballot, Birmingham adjourned the special session, effectively killing the amendment for at least two years.

Crews and hundreds of his allies were outraged. They jeered at the assembled legislators from the gallery of the House chamber, and chanted "We want a vote!"

"I felt absolutely drained," said Crews, 55, a former legislator from Georgia. "We had invested a lot of time, a lot of resources into that process. But we knew the suit was still going, and we still needed to do something."

Within a day or two, Crews was back at the State House with another constitutional amendment.

Gay activists were overjoyed with the Birmingham maneuver. Now, the earliest Crews could put an amendment on the ballot would be 2006. If the court ruled in favor of same-sex marriage, gay and lesbian couples could be getting licenses for as long as three years before the public would be asked to vote on reversing their marriages. Those three years, the activists believed, would be crucial to winning public acceptance for married gay and lesbian couples.

Arline Isaacson, who had initially worried that the lawsuit was filed too early, could see things changing. Polls were showing support growing for same-sex marriage.

"We were right, and we were wrong," Isaacson said. "We were right in that, had this [amendment] gone to the ballot in 2002 or 2004, we would have been slaughtered. But we were also wrong in gauging how quickly the public opinion would move in our favor."

'Somebody has to say this'

In March of this year, the case was finally heard before the SJC. More than 200 people turned out, packing the courtroom and spilling over into the hallway.

Bonauto was nervous. She kept telling herself, "This is right, somebody has to say this," to calm down. When she was called to make her argument, she started speaking before the green courtroom light went on. Justice John M. Greaney gently reprimanded her.

"The plaintiffs stand before this court seeking nothing more, and nothing less, than the same respect under our laws and Constitution as all other people enjoy," she argued.

It was all over in half an hour. The justices had pummeled both sides with questions, making it impossible to tell which way the case would go. Now all the lawyers could do was wait. And the court took its time, even missing its traditional deadline for issuing decisions, setting off feverish speculation about its deliberations.

Just after 10 a.m. on Tuesday, the SJC handed victory to the seven couples and their lawyers. At midday, they gathered, beaming, for a press conference in the same hotel at the foot of Beacon Hill where they first introduced themselves to the public. There were plenty of questions of law to clear up, and serious talk of upcoming political and legal challenges. Then, at the end of the press conference, Bonauto was asked if she, herself, would be getting married.

Bonauto, usually businesslike, hesitated for a few seconds. Then her face loosened into a smile.

"You bet!" she said.

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)
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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