Officials, state legislators ponder their next moves
The Vermont Supreme Court placed the burden on that state's Legislature when it ruled in 1999 that same-sex couples had to be given the benefits and protections of traditional marriage. Lawmakers responded by establishing civil unions.
In Massachusetts, however, the Supreme Judicial Court has done the heavy lifting: Gay marriage will be allowed May 17 without any action on Beacon Hill.
The Supreme Judicial Court made that clear yesterday, telling the Senate that creating civil unions -- even with all the benefits, rights, and responsibilities of marriage -- didn't meet the constitutional requirements of its Nov. 18 ruling on gay marriage. The court noted that the 180-day delay it included in its Nov. 18 decision was designed to "afford the Legislature an opportunity to conform the existing statutes to the provisions," not to give legislators time to craft a civil union-type alternative.
In the eyes of gay marriage supporters, the Legislature can "conform the existing statutes" simply by adjusting the language in the more than 500 state laws that include terms such as "husband" and "wife," a change that could be made to avoid confusion, but isn't required. Mary Bonauto, the lead lawyer in the lawsuit that sparked the initial decision, described the current language as little more than "an administrative bump for people," adding that "the Legislature doesn't have to do a thing."
"The SJC has clearly spoken," said Attorney General Thomas F. Reilly. "Same-sex couples have the constitutional right to marry under Massachusetts law."
Now, many people on both sides of the issue say, the only decision facing lawmakers is whether to push forward with a constitutional amendment that would explicitly define marriage as being between a man and a woman.
If the Legislature chooses to amend the constitution, it could take the first step on that road on Wednesday, when it meets for a constitutional convention. If lawmakers approve the amendment then, it will have to be cleared by two successive Legislatures before appearing on the ballot in 2006.
Administratively, there is little that would have to be changed in a move to same-sex marriages. The marriage forms the Department of Public Health currently distributes to city and town clerks use the words "bride" and "groom," but an agency spokeswoman said yesterday that "it will be prepared to comply with the law come May 17."
Even the current forms would work with a few small adjustments, Bonauto said.
"I don't think it's a terribly complicated process to change the forms," she said. "But if the forms aren't changed, people will do what they've always done with forms that don't reflect their reality: They'll scratch the words out."
Rosaria Salerno, Boston's city clerk, agreed that the bureaucratic changes would not be difficult.
"I would imagine that we'd have to make the simple change of `bride' and `groom,' " Salerno said. "I don't know what you'd say -- `partner' and `partner?' That needs to be dealt with sensitively."
Supporters of gay marriage welcomed yesterday's ruling as an affirmation of what they have believed all along.
"The court has reaffirmed that our constitution does not allow discrimination, and with that being clear, the Legislature needs to take no action whatsoever," said Arline Isaacson, cochairwoman of the Massachusett Gay and Lesbian Political Caucus.
Bonauto said "any confusion that anyone may have had in his or her own mind about what the court meant in its historic ruling on Nov. 18, 2003, has now been laid to rest."
Ronald A. Crews of the Coalition for Marriage, which is leading the fight against gay marriage, said yesterday that he isn't sure what the Legislature can do short of proceeding with the amendment, though he would like it to do something. "I'm not sure exactly what can be done," Crews said. "They're the Legislature. They can figure that out."
Senate leaders appear resigned to the idea that an amendment is their only alternative. But House leaders are still searching for another route. In a written statement, House Speaker Thomas M. Finneran said he will refrain from comment until, "I have thought through the options which remain for the people of Massachusetts."
One of his top lieutenants, Representative Eugene O'Flaherty of Chelsea, was more specific, suggesting that the court might accept a law that allows civil unions and lays out the specific reasons why marriage should be reserved for male-female couples.
"I don't think it closes the door," O'Flaherty said, adding that in reviewing the Senate's civil-union bill the court "didn't have a statute enacted by the Legislature that has a written preamble or a section explaining why we think marriage should be between a man and a woman." 