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Finneran cites three options on SJC ruling

Lists legislative inaction, civil union bill, or ban

House Speaker Thomas M. Finneran said yesterday that the Supreme Judicial Court did not force the Legislature to enact gay marriage immediately, but instead sent the divisive issue into the political arena, where lawmakers will face "heartfelt" decisions based on their beliefs as much as the law.

 

Finneran, who until yesterday had not spoken publicly on the historic Nov. 18 ruling, said he sees three options for the Legislature: a constitutional amendment to ban gay marriage, a civil unions bill for same-sex couples, or doing nothing and letting the ruling stand. He has not decided which approach he prefers.

"The ultimate answer to all of this is, what does the majority of the members want to do on this?" Finneran, a lawyer, said in an interview.

Politics "is the reality, and the Supreme Judicial Court has acknowledged that reality," he said. "It said, `Legislature, [you have] six months to try to do what the political requirements are.' "

The comments, similar to those he offered earlier in the day at a gathering of newspaper publishers, seemed to agree with the opinion of Attorney General Thomas F. Reilly and Governor Mitt Romney, who have said lawmakers have the power to write a bill to meet the court's standard without calling the union of a same-sex couple marriage.

Speaking of his fellow lawmakers, Finneran said: "We're doing what everyone else is doing: critical reflections and examinations of what the court is saying, what is our obligation, and what is each of our heartfelt beliefs on a matter of this significance. It has legal, moral, and social considerations for 270 million Americans, not just 6 million people in Massachusetts."

Gay-rights advocates said yesterday that Finneran's candor about the political pressures surrounding same-sex marriage was refreshing, but some decried the view that politics have a place in the discussion.

"He's in part quite right: It is more political than it really should be, because we don't believe legislators should play politics with our civil rights," said Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus. "On the other hand, we're realistic enough to understand that that's what we're going to be dealing with for the next several months."

Several constitutional scholars disagree, however, that the Legislature can pass a bill to get around the SJC's ruling.

Laurence Tribe, a Harvard Law School professor and constitutional specialist who has followed the SJC's ruling closely, said he concurs with Finneran's assertion that the Legislature has the option of amending the constitution, a process that will take until at least 2006, or of doing nothing. Inaction, he said, would result in same-sex couples marrying next spring, when the court's 180-day stay on the decision is up.

But passing a civil union alternative to marriage for same-sex couples or merely defining marriage as a heterosexual institution by statute, would not suffice, Tribe said. The ruling, he noted, was explicit in discussing marriage as a unique institution that confers a desired status in society.

With a civil union law, "even if you say you will give same-sex couples all the rights of marriage, the one right you did not give is the name, and that's a large part of what the opinion is about," Tribe said.

Many of the benefits of civil unions would not extend beyond Massachusetts, while full-fledged marriage potentially would be recognized throughout the country, many legal scholars say. Even so, several lawmakers on Beacon Hill, as well as Romney, are pushing for such legislation.

Yesterday, Representative Charles A. Murphy, Democrat of Burlington, told the Globe he is preparing to file a bill next week that would authorize civil unions for same-sex couples while defining marriage as a heterosexual institution. It would be the first such bill filed since the ruling. Murphy, a lawyer, said his bill would differ significantly from similar legislation passed in Vermont in 2000, because it would confer "all of the rights that married couples enjoy and not just a fraction of them."

"This would be Massachusetts civil unions," he said. "My intent is to be more inclusive than Vermont."

Because Murphy's bill would be classified as late-filed legislation, it would move to the Rules Committee, which is chaired by a loyal lieutenant of Finneran's, Representative Angelo M. Scaccia.

Finneran was asked if he might let such a bill come out of committee for a vote and said he expects several bills to be proposed in coming weeks. "They will all have to kind of follow the process," he said. "There's no really sidestepping this issue. We have 180 days, and a variety of options will present themselves."

Representative Eugene L. O'Flaherty, another Finneran deputy who serves as cochairman of the Joint Judiciary Committee, said he hopes that a bill such as Murphy's could move quickly enough to avoid amending the state constitution by defining marriage as the union of a man and a woman.

As O'Flaherty sees it, a bill like Murphy's could go straight from Scaccia's committee to the SJC, which could then offer an advisory opinion on its constitutionality.

Isaacson said Murphy "is a good guy, he is well-intentioned, and we've worked with him in the past, but on this one, he's wrong." "There is absolutely no way that a civil unions bill can ever encompass all of the legal protections of a civil marriage license," she said.

But Ronald A. Crews, president of the Massachusetts Family Institute, which opposes same-sex marriage, said he would applaud any efforts to pass a bill restricting marriage to heterosexuals.

"I think no action would be the worst thing we can do," Crews said. "The Legislature has to be the equal branch of government that they are and to take back democracy."

It remains unclear where the majority of lawmakers stand on the issue. A Globe poll after the SJC's ruling found a 2-to-1 majority of those who responded were opposed to a proposed constitutional amendment that would ban both gay marriage and civil unions. Murphy was one of those in opposition.

It also remains unclear whether Murphy's bill could move quickly enough through various committees and hearings to preempt the Feb. 11 vote on that proposed constitutional amendment, whose chief sponsor is Representative Philip Travis of Rehoboth.

Finneran yesterday seemed resigned to the notion that, to pass, Travis's bill would have to drop language that many lawmakers interpret as banning civil unions, as well as same-sex marriage.

Asked what the Legislature would ultimately do, Finneran said: "Is it the Travis approach with a removal of the troublesome language, or is it a statutory response, or is it no response? It can go all the way from here to there, and I don't know where the membership is right now."

It appears that most lawmakers agree that, at a minimum, same-sex couples can look forward to either civil unions or marriage. "I don't believe we can debate anymore whether we can give domestic-partner benefits, or whether same-sex couples should have some probate rights," O'Flaherty said. "One thing that is clear is that the same rights I enjoy as a traditional married person are going to be enjoyed by same-sex couples."

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