Bid would leave gay marriages intact

A proposed 2008 ballot initiative to ban gay marriage would leave thousands of existing same-sex marriages intact, adding a wrinkle to the upcoming battle over who should be afforded the right to wed in Massachusetts.

The initiative, which Attorney General Thomas F. Reilly must certify before it can appear on the ballot, would ask voters to define marriage in a very specific way: between one man and one woman. It would pertain solely to the future, however, meaning that more than 6,500 same-sex marriages already on the books -- and any more that take place in the next three years -- would remain legally recognized.

The detail has been circulating on Beacon Hill over the last several days as activists on both sides of the issue await Reilly's decision on the 2008 initiative and a Constitutional Convention set for Sept. 14 on a separate proposal for the 2006 ballot banning gay marriage and creating civil unions.

Backers of the 2008 measure are careful to say that they do not condone same-sex marriages, but they acknowledge the legal landscape, fearing that any bid to take away existing rights of married couples would probably be deemed unconstitutional in state and federal court. The Supreme Judicial Court legalized same-sex marriage in a November 2003 decision.

''Most people recognize this reality," Kris Mineau, president of the Massachusetts Family Institute, said of supporters of the gay-marriage ban. ''We are the only state that has same-sex marriages and so . . . that limits the directions we can take."

Governor Mitt Romney, who supports the ballot initiative, is aware that the question would effectively preserve same-sex marriages that take place before 2008 and he understands the proponents' reasoning for designing it that way, spokeswoman Julie Teer said.

Mineau explained that any ballot question that nullified gay marriages would probably run afoul of the state constitution because it would violate a provision prohibiting the reversal of judicial decisions through a citizen's petition. He said it would violate the US Constitution by taking a right away from people by passing a law that applied retroactively.

State Representative Philip Travis, a chief supporter of the 2008 initiative and leading opponent of gay marriage in the Legislature, added that undoing marriage rights for those gay couples would be unfair.

''I would never go back and say, 'Your marriage of 3 1/2 years is nullified,' " said Travis, a Rehoboth Democrat. ''That would not only be unfair but mean-spirited."

Travis said he will soon introduce a bill to grant many so-called reciprocal rights, including hospital visitation privileges, to any two adults -- gay or straight -- who are living together as a family unit.

But MassEquality, a coalition of local and national groups advocating for gay marriage rights, contends that the 2008 initiative, by allowing some same-sex marriages but disallowing others, would violate federal law by effectively creating different classes of people.

''We believe that it's unconstitutional to have different classes of gay couples -- some gay couples that can marry, some gay couples that can't marry, and some gay couples that can be married but if they get divorced they can't be married again," said Marty Rouse, campaign director for MassEquality.

Not all gay marriage opponents are resigned to letting existing same-sex marriages remain standing. State Representative Emile J. Goguen, a Fitchburg Democrat, has sponsored a bill that would nullify all same-sex marriages since May 2004, when same-sex weddings became legal.

''It's been like this for thousands of years -- a man and a woman," Goguen said. ''A child deserves to have a mother and a child deserves to have a father. It just doesn't fit right."

But Goguen's bill, which is pending before the Legislature's Judiciary Committee, does not appear to have enough support to advance in the Legislature. State Senator Robert S. Creedon Jr., cochairman of the committee, said members of the panel believe it is probably unconstitutional.

For this week and next, activists on both sides are concerned primarily with whether Reilly will approve the ballot question, which would allow supporters to begin collecting signatures to get it to voters in 2008. Reilly, who is under immense pressure from both camps, must rule by Sept. 7.

If Reilly signs off on it, supporters say they will launch a massive signature drive Sept. 21. To get the initiative on the 2008 ballot, they need to collect nearly 66,000 signatures from Sept. 21 to Nov. 23.

The Catholic bishops in Massachusetts, who are backing the 2008 effort, have sent letters to priests encouraging them to participate in the signature drive, Mineau said. He said they also have many Protestants who have agreed to help.

For now, supporters of the proposed gay marriage ban are urging the defeat of a separate constitutional amendment for 2006 that would ban gay marriage but create civil unions.

The amendment passed the Legislature last year but needs a second approval this year and the support of voters to become law.

Activists on both sides predict that the amendment will be defeated when lawmakers take it up Sept. 14, in part because several opponents of gay marriage plan to vote against it -- because of the civil-unions provision. Some opponents, however, say they may support the 2006 measure if Reilly rejects the 2008 effort.

Some observers contend that it could be a close vote if those same-sex marriage opponents end up backing the amendment. But every week brings news that former amendment supporters have changed their minds. The Worcester Telegram & Gazette reported Saturday that two former supporters in the House, Vincent A. Pedone and James B. Leary, both Worcester Democrats, will vote against it.

Scott Helman can be reached at shelman@globe.com.