Convention may be overture to long debate

The gay-marriage debate that consumed the State House yesterday culminated nearly four months of legislative jockeying on Beacon Hill, but it was also the start of a new stage of contentious political and legal conflict that could last until fall 2006.

In three preliminary votes last night, the Legislature approved a constitutional amendment defining marriage as the union of a man and a woman while establishing civil unions for same-sex couples with "entirely the same benefits, protections, rights, and responsibilities" of marriage. The debate is far from over, however, with lawmakers, Governor Mitt Romney, the courts, and the voters poised to play a role in its eventual outcome.

First, legislators will reconvene on March 29 for a final vote on whether to take up the amendment again at their next Constitutional Convention in the 2005-06 session, when it must be approved to be placed on the ballot in November 2006. There is speculation on Beacon Hill that gay marriage opponents will use the opportunity at the end of the month to replace the amendment with one that waters down the civil union provision. The amendment's prospects could also be affected by this fall's elections, which could alter the composition of the Legislature. Furthermore, even though the Supreme Judicial Court ruled that Massachusetts must allow gay marriages effective May 17, Romney is considering a plan to ask the SJC to block issuing marriage licenses until voters have a chance to weigh in on the issue."We believe there are options," said Romney spokesman Eric Fehrnstrom. He said the governor would make a more detailed statement upon final approval of an amendment. Also, the governor has vowed to campaign for Republican candidates, and gay marriage may become a pivotal issue in some races. Romney touted the victory of Scott P. Brown in a special Senate race earlier this month as evidence that the GOP is marching into November's legislative elections with momentum.

Brown, a Republican, was outspoken in his opposition to gay marriage while his Democratic opponent, Angus McQuilken, expressed support for it. Brown replaced Cheryl A. Jacques, a Democrat from Needham who was one of the Legislature's few openly gay elected officials. She left to become executive director of the Human Rights Campaign.

In the last three weeks, a group on each side of the debate has established a political action committee to raise money for candidates supporting its point of view, according to the Office of Campaign and Political Finance. Those committees, called PACs, can contribute up to $500 to a candidate in a calendar year. Legal specialists also said the amendment could be open to court challenge, especially because it does not spell out what would happen to gay couples who get married between May and the possible approval of the amendment in 2006.

Laurence H. Tribe, a Harvard law professor and constitutional scholar, pointed out that the US Constitution bars state laws that retroactively impair contracts that are entered into legally. Tribe said the amendment is also vulnerable because it denies equal protection to a class of citizens.

"By recognizing the special value of marriage and its uniquely important role and the fact that it provides something, even if only symbolic, that a civil union with all the same rights and responsibilities does not provide, the amendment is writing its own ticket to oblivion," Tribe said.

Recent polls suggest that Bay State citizens are roughly divided on the question of whether gays should be allowed to marry, with a slight majority opposed. But gay-marriage supporters are hopeful that many people who are uneasy about same-sex marriage now will grow more comfortable with the idea after it becomes a reality in May and that public sentiment will be against the amendment by the time of the 2006 vote. Evan Wolfson, executive director of the Freedom to Marry Coalition, says his cause can only be helped when heterosexuals see that gay couples also worry about their children and fight over who takes out the garbage.

One important factor in a possible ballot battle is that the amendment the Legislature approved last night would remove many religious conservatives from the fight: Because they are opposed to civil unions, leading gay-marriage opponents said last night, they cannot support an amendment that would enshrine those relationships in the constitution.

"The way this measure is structured, you've put the public into a corner: They are forced, in order to protect something they hold dear, to accept something they don't approve of," said Tony Perkins, president of the Family Research Council. "We do not support the civil union and domestic partnership laws because we see them as counterfeit institutions. Just as counterfeit $20 bills impact our economy, we feel these counterfeit unions have an impact on our culture." Given that stance, Pamela Wilmot of Common Cause Massachusetts said she doubts that religious conservatives will pour money into the state to support the amendment, especially since President Bush has thrust the issue into the national arena by backing a federal gay marriage ban.

"The right will pour a lot of money into that, especially if we have this ballot question that is a lose-lose for them," Wilmot said.

If religious conservatives remain on the sidelines, gay marriage supporters may not have to mount a huge and expensive campaign against the amendment. But Perkins insisted that Massachusetts remains crucial to gay marriage opponents.

"We continue to believe that this debate here, as it unfolds over the next few months, will be important to the rest of the nation," he said.