Fragile compromise seen on banning gay marriage

After a weekend of polling and cajoling colleagues, state Senate President Robert E. Travaglini said yesterday he had marshaled a majority of lawmakers for Thursday's constitutional convention to support a compromise amendment that would ban gay marriage but create civil unions.

Travaglini cautioned, however, that "this situation is rather fluid" and that "it would be very difficult to do a head count with any degree of accuracy," but said he believed the fragile coalition would hold together in the end.

"There are conversations that happened over the weekend and continue to happen today that give me confidence that we can reach consensus by Thursday," the East Boston Democrat said.

House Speaker Thomas M. Finneran, who cosponsored the measure with Travaglini and other House and Senate leaders, told reporters that he and two lieutenants had spent most of the weekend calling House members and "asking them to support the pending compromise amendment -- that we think it's probably the best we can do, given the circumstances."

But Finneran offered a more guarded assessment. Asked if he and Travaglini had the 101 votes needed to pass an amendment, Finneran said: "I think it's a little early to say that. I worked all weekend long, several hours Saturday, several hours Sunday, I've had a couple of people helping me several hours each day. It's very fluid. We're going to count. I don't want to say anything until we have a hard count. I think it would just be premature for me to say that. It's fluid."

Some lawmakers interviewed yesterday said that, contrary to Finneran's statement that he and Representatives Eugene L. O'Flaherty, a Chelsea Democrat, and John H. Rogers, a Norwood Democrat, had asked for support, they were merely polled and not prodded to support the compromise. Some also said they remain skeptical that Finneran backs the measure he has cosponsored and not more conservative proposals.

"I felt it was just an honest question of where I was on the issue," said Representative Jay R. Kaufman of Lexington, who told House leaders he is not inclined to vote for the compromise measure. "I certainly didn't feel pushed one way or the other."

Representative John W. Scibak, a freshman Democrat from South Hadley who supports gay marriage, said the parliamentary maneuvering and gamesmanship in the debate left him confused after his call from Rogers, in which Rogers touted the Finneran-Travaglini measure as "a good compromise." "That's the used car that the salesman was trying to sell me, and I don't mean that in a disparaging way," Scibak said. "We're playing a game here, and how much is reality and how much isn't?"

The latest compromise most closely resembles a proposed constitutional amendment that the Legislature rejected 104-94 in last month's constitutional convention. That proposed amendment would ban gay marriage and create civil unions.

But the measure also would have reclassified a gay marriage into a civil union if it occurred between May 17, when the Supreme Judicial Court historic ruling legalizing gay marriage goes into effect, and November 2006, when voters are to consider the ballot initiative.

The latest compromise would ban gay marriage and create civil unions, but it would not retroactively reclassify marriages that occur after May 17.

Several lawmakers have expressed confusion over Finneran's true stance on the compromise measure, largely because he discussed an alternative strategy with a skeptical Travaglini last week that entailed offering voters two amendments, one that would ban gay marriage and another that would create civil uions. Nonetheless, Finneran has insisted he supports the measure that combines both provisions in one amendment.

As they prepare for the second constitutional convention, some representatives who received calls from Finneran and his allies over the weekend said that the callers exerted subtle pressure to support the latest compromise. They said that Finneran is not a fan of bifurcating the amendment.

Representative Ellen Story of Amherst said Rogers told her "the speaker was very concerned that the amendment might be bifurcated and that there might be something on the ballot defining marriage that would pass and something creating civil unions that would not pass, and that would concern the speaker because that would leave gays without any rights."

House Republicans, who last month voted in virtual lockstep with Finneran, issued a news release saying they will oppose the Travaglini-Finneran measure Thursday and support the idea of two amendments for the voters to consider.

The Republicans said they wanted one amendment to define marriage as the union of one man and one woman and another that offered "the creation of civil unions with all the same benefits, privileges, and responsibilities" as marriage.

"If the question was split into its two parts, I and the vast majority of the Republican caucus would be supportive of each question in the true spirit of compromise," said a statement released by House minority leader Bradley H. Jones Jr., a North Reading Republican.

House Republicans, hoping to sway as many votes as possible yesterday, disseminated a letter from several conservative legal scholars warning that the Finneran-Travaglini measure would "raise serious religious liberty issues statewide" if passed. The letter says that the amendment would mean that "churches and other religious organizations that fail to embrace civil unions. . . may be forced to retreat from their practices or else face enormous legal pressure to change their views."

"Precedent from our own history. . . suggests that religious institutions could even be at risk of losing tax-exempt status, academic accreditation, and media licenses and could face charges of violating human rights codes or hate speech laws" if they refuse to participate in civil union ceremonies for same-sex couples, the letter said.

Senate Republican leaders, by contrast, stood firm with the Travaglini-Finneran compromise yesterday.

"There is a strong feeling in this building over the last five or six days that this is the best compromise we're going to get," Senate minority leader Brian P. Lees, an Indian Orchard Republican said. "I think you're going to get a few people from both sides" to sign onto the compromise measure.

Travaglini, informed of the House Republicans' position, said he was confident he could gather enough votes to pass the compromise measure.

Ironically, supporters and opponents of gay marriage said they stand against the Finneran-Travaglini compromise.

Those who back the SJC's ruling say it would take away rights of same-sex couples bestowed by the court. Those who oppose that ruling say it would give same-sex couples so many rights that it would destabilize marriage as a historic institution founded on heterosexuality and procreation.

O'Flaherty, who is chairman of the Judiciary Committee and who made calls on behalf of Finneran over the weekend, said that he will vote for the compromise and that it may ultimately pass. But he said the Legislature will not make many friends in the process.

"I think most members would like to see this issue disposed of in as fair a way as possible," O'Flaherty said. "Is this perfect? I don't think so. What disturbs me is that we haven't been able to achieve consensus on an item that we needed clarity on. "

Globe correspondent Matthew Rodriguez contributed to this report.