House Speaker Thomas M. Finneran vowed yesterday to explore all options for the Legislature to delay implementation of the Supreme Judicial Court ruling legalizing gay marriage, although legal specialists and other legislative leaders said there is no wiggle room once the ruling takes effect in May.
Finneran, a Democrat who is a staunch opponent of gay marriages, said he feared legal chaos if gay couples are allowed to marry this year and then Massachusetts voters approve a constitutional amendment in 2006 that would define marriage solely as the union of a man and a woman.
One option under consideration by lawmakers yesterday was to ask the SJC for a delay of its May deadline. Another possibility would be to pass a law describing the rational basis for banning gay marriage, and then hope the law would be challenged and the court would determine that gay marriage is unconstitutional.
"There's more than one option," Finneran said. "I can tell you that."
Lobbying heated up yesterday on the upcoming legislative vote Wednesday on the proposed constitutional amendment. Former Senate president William M. Bulger and Archbishop Sean P. O'Malley telephoned Senate President Robert E. Travaglini yesterday to urge him to allow lawmakers to vote on the constitutional amendment as scheduled, three legislative strategists said.
But Travaglini, who controls the gavel at the upcoming constitutional convention, said he has not decided whether to take up the amendment.
Finneran and other gay marriage opponents also said the vote should take place Wednesday. Finneran said he believes the court's advisory opinion Wednesday reaffirming gay marriage as constitutional has galvanized support for the amendment. Gay marriage supporters urged that the vote be delayed. "There seems to be, particularly in the aftermath of yesterday's decision, a growing sentiment of the members of the House to take this up on the 11th, and address it, and to bring some sense of decision-making to it," Finneran said. "An awful lot of members feel as if, on one of the most important public policies that anybody could contemplate, that the people and their elected reps have been effectively sent to the sideline."
One top Democrat said that Finneran's leadership team feels that opponents of gay marriage have a slight edge in the vote count, but added that some lawmakers counted in that majority are "shaky."
Arline Isaacson, the cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, predicted that, if taken up next week, the amendment would probably pass. "There's momentum right now toward misunderstanding and confusion," she said. "It would be hard for us to win."
Isaacson and other gay rights advocates argue that the lawmakers do not fully appreciate the legal implications involved if the voters approve the ban on gay marriages in November 2006 after the practice had been legal for nearly two years. One potential outcome is that gay marriages would be legally dissolved. "Can you imagine the state being in the position of forcing people to divorce?" Isaacson said.
Opponents of gay marriage are planning a rally Sunday in front of the State House, with a host of speakers, including former Boston mayor Raymond L. Flynn, O'Malley, and several national activists in the movement opposing gay marriage.
The lobbying and shifting positions reflected the confusion that gripped Beacon Hill the day after the justices, in a strongly worded opinion that backed up their Nov. 18 ruling legalizing gay marriages, removed what many say is the last legal barrier to same-sex unions in Massachusetts.
Lawmakers are working on two timetables. The most immediate decision is whether to hold a constitutional convention Wednesday, when House and Senate lawmakers would consider several proposed amendments to the state constitution, including one sought by gay marriage opponents. The amendment would have to clear the Legislature twice before going to voters in November 2006.
The second decision is how to handle the May deadline for gay marriages. In its initial Nov. 18 ruling declaring the state's ban on gay marriage unconstitutional, the SJC gave lawmakers 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."
On Wednesday, the court rejected a proposed civil union statute for gay couples, saying it amounted to "an unconstitutional, inferior, and discriminatory status for same-sex couples."
Yesterday, legislative officials suggested that Finneran may try to pass a series of statutes that would delay implementation of the SJC's ruling while same-sex couples seek a court order to overturn the new, obstructionist statutes. Perhaps, they said, Finneran and his backers could buy time until November 2006, the earliest date on which a constitutional amendment could voted on by the state's citizens.
Representative Eugene L. O'Flaherty, a Finneran ally who is House chairman of the Joint Judiciary Committee, has said he hopes to produce a bill that would insert into law a rationale for keeping marriage a heterosexual institution, in a bid to demonstrate to the SJC why excluding same-sex couples is warranted. The strategy has been outlined by Harvard law scholar Mary Ann Glendon, who has also been consulted by Governor Mitt Romney.
But legal specialists say the effort to block implementation of the ruling is futile. Rosemary Salomone, a constitutional law scholar at St. John's University, said the Legislature has two options: "Change the constitution or eat crow."
"The Legislature loses enormous credibility if it tries to nibble away at the edges and enact civil union statutes and other things that fly in the face of the ruling," she said. "You would get a series of very quick decisions from the Supreme Court. You would have gay rights advocates in there challenging those laws the day they are passed."
Several legal scholars said they could not envision a scenario that would enable Finneran and other gay marriage opponents to block the issuance of marriage licenses to same-sex couples on May 17.
Charles H. Baron, a law professor at Boston College Law School who specializes in the study of the Massachusetts Constitution, said gay marriage opponents in the Legislature could try to pass a law that gets rid of civil marriages altogether and instead create a system of certification for all couples, heterosexual and homosexual.
"The Legislature would have to come up with something that treated both groups equally," Baron said. "They could get rid of marriage as a state institution. They could say, the only thing we will sanction is civil unions for everyone, and leave it to the synagogues and churches and mosques to marry."
Such strategies are futile, according to Francis X. Bellotti, a former attorney general who has come out in favor of Vermont-style civil unions, but says he now sees no way to stop same-sex marriages from taking place.
"There's only one way: the constitution," Bellotti said. "When the court says marriage is the only thing that passes constitutional muster, the only way you can change that is to change the constitution. The rest is foolishness."