Gays fear fallout of San Francisco rites
When San Francisco Mayor Gavin Newsom began issuing marriage licenses to same-sex couples this month, many in the gay rights movement nationwide cheered.
But in Massachusetts, the sudden act of civil disobedience is setting off deep concern among some leading gay advocates, who worry the move could undercut the push for same-sex marriage here.
In addition, some fear, the prospect of gay couples now returning to their home states from San Francisco with marriage licenses of uncertain legality may sow confusion and fuel the drive by conservatives to pass a federal constitutional amendment banning gay nuptials in all states.
"What happened in San Francisco has not helped us at all," said Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus. "And it arguably made things worse here."
The reaction here underscores the different strategies supporters of gay rights in the two states have used to try to secure marriage rights.
Whereas San Francisco officials chose to ignore -- and ultimately test -- a state law restricting marriage to heterosexuals, in Massachusetts gay rights lawyers made a strategic decision to work within the law. Attorneys here chose seven same-sex couples to seek marriage licenses, and then filed suit when they were denied. The lawyers knew the case would ultimately land in the state's Supreme Judicial Court, which was viewed as receptive to an expanded notion of family.
With victory in hand -- the SJC on Nov. 18 issued its landmark ruling that gays have a constitutional right to marry -- the gay advocates are now arguing that Governor Mitt Romney and state agencies should comply with the law and permit the licenses to be issued to gay couples. The SJC ruling is set to take effect on May 17.
"In Massachusetts the argument is we have to follow the law, not stand in the schoolhouse doors," said US Representative Barney Frank, a Newton Democrat and one of three openly gay politicians in Congress. "In San Francisco, they've gone in the opposite direction."
Even though San Francisco's mayor contends he issued licenses because the California constitution permits him to, some advocates here say the initial flouting of state law set a bad precedent. "We hope they're right that the California constitution allows for same-sex marriage, but they are challenging the law exactly as Romney and [Massachusetts House Speaker Thomas M.] Finneran and the Legislature would like to challenge the law," Isaacson said.
Frank, interviewed by phone, said he also worries that the situation in California could generate more support to amend the US Constitution to ban same-sex marriage nationwide. Last week, a county clerk in New Mexico issued licenses to 15 gay couples.
"I do not want to see support for it to grow," Frank said of the federal amendment, which would also have to be ratified by three-fourths of the nation's state legislatures to go into effect. "The big question is, if people become convinced that it will bring to their states what happens in Massachusetts, we're in trouble. Suppose other liberal cities do this, like Ann
Romney, who has decried the SJC's ruling as "judicial activism," said on Friday that the state "will abide by the law as it exists on May 17."
"It is of no interest, and I have certainly no intent, to do anything other than to follow the law," he said.
But some opponents of same-sex marriage in the Legislature, including Finneran, have discussed trying to change state laws before May 17. Finneran has proposed repealing the state's marriage law and replacing it with a new law that would state reasons for excluding same-sex couples from marriage. In the unlikely event the Legislature passed the bill, Romney would almost certainly sign it, thereby changing the laws he has vowed to enforce.
State Representative Bradford R. Hill, an Ipswich Republican who backs efforts to amend the state constitution to ban same-sex marriage, said yesterday that he doubts Romney or anyone else will attempt to block gay couples from receiving marriage licenses in May.
"I can't speak for the governor, but I don't know him as being a lawbreaker," Hill said. "From what I'm hearing, I don't see anyone trying to block the licenses."
Finneran has warned of legal "chaos" in the event that Massachusetts gay couples begin to get married in May. Legislators are considering several proposed amendments to the state constitution that would ban gay marriage, and extend some kinds of benefits to gay couples. But the public would not vote on any amendment until 2006 -- 30 months after gay couples could legally wed.
To preempt such confusion, Ronald A. Crews, spokesman for the Coalition for Marriage, which supports the amendment, said he believes that Romney or the Legislature may yet have legal tools at their disposal to delay the SJC's ruling.
"The governor or the Legislature could say, `SJC, you have overstepped your bounds and we will not allow this opinion to be carried out,"' Crews said. "If the governor were to issue an executive order, it would be based on a clear reading of the constitution as to where the authority to regulate marriage lies."
Harvard University constitutional scholar Laurence Tribe, who supports the SJC ruling, said he sees a huge difference between what San Francisco's mayor has done and what Crews proposes. The difference, he said, is that California's high court has not ruled definitively on marriage licenses for same-sex couples.
"When the highest court has spoken, it is not appropriate for another branch of government to interpret the constitution," Tribe said. If Romney or the Legislature acted to block the SJC's ruling, Tribe said, "that would be exactly equivalent to a Southern governor saying `education is the subject of the state, and I will not comply with the Brown v. Board of Education decision' " by the US Supreme Court, which mandated school desegregation.
Even if Newsom's actions have generated unease among many gay rights proponents in Massachusetts, some are applauding his decision, including Nancy Faria and Linda Weidner, who flew from Boston to San Francisco last week to get married. "Listening to the Legislature and seeing all the hate out there and all of these people against us, we said, `Now here's a positive thing,' " Faria said. "San Francisco said, `So sue us.' They were very welcoming; they said come out and get married. It was wonderful."
Globe correspondent Matthew Rodriguez contributed to this report.
