Gay-marriage ban backed, but uncertainty remains

The Massachusetts Legislature voted three times yesterday to ban gay marriage and establish civil unions, but maneuvers by both opponents and supporters of gay marriage left it unclear whether the constitutional amendment would ever get to the voters. The House and Senate will resume their Constitutional Convention March 29, and other proposals may be considered then.

Meeting in a Constitutional Convention for the second time in a month, lawmakers spent nearly 10 hours debating the proposed compromise that would overturn the Supreme Judicial Court's landmark ruling establishing the right of gay couples to marry. It would also give same-sex couples rights and benefits under state law that would approximate marriage, though under a different legal designation. But the amendment cleared only three of the four votes it needed for final passage before the session recessed at about 11:40 p.m. While the margins were comfortable on all of the votes taken, many of those supporting the measure were doing so for strategic reasons rather than genuine support, in the hopes of winning a different outcome later.

Supporters of gay marriage plotted to derail the compromise amendment and leave the SJC ruling standing. Opponents of gay marriage and civil unions said they still would have the opportunity to present voters with a ballot initiative that would ban same sex marriage.

"Keep your scorecards ready," Representative George N. Peterson Jr. of Grafton, the House's third-ranking Republican, said in describing the various scenarios being envisioned. "This Constitutional Convention is fairly well split down the middle, as we've seen in vote after vote."

Any amendment approved by the Legislature this year would also have to clear the 2005-2006 Legislature before going to the voters in November 2006. Lawmakers have blocked out March 29, 30, and 31 for constitutional business.

Through all the shifting loyalties and furious lobbying, one certainty loomed yesterday: Under the SJC ruling, gay couples will be allowed to wed starting May 17, unless Governor Mitt Romney or the Legislature tries another maneuver to stop them.

The amendment voted on yesterday, offered by House Speaker Thomas M. Finneran and Senate President Robert E. Travaglini, would preserve marriage as only the union of one man and one woman. But it would establish civil unions for same-sex couples that carry entirely the same benefits, protections, rights, and responsibilities that are afforded to couples married under Massachusetts law.

The measure won initial approval with relative ease, 129-69, after only three hours of debate, as thousands of protesters gathered outside and inside the State House. A second question also sailed through the Legislature last night, 136-62.

In both of those votes, the supporters included approximately three dozen socially liberal lawmakers. They opposed the measure on its substance, but voted for it in a procedural gambit designed to stop what they viewed as more onerous measures.

Those lawmakers, who wore special pagers during the debate to coordinate strategy, planned to oppose the measure when it was considered later in the process, in hope of keeping anything from going to voters. If successful, that strategy would have left the SJC ruling intact, allowing gay couples to marry.

With that in mind, the liberals switched their votes from yes to no on yesterday's third vote. But, alarmed at the possibility of no measure reaching the ballot, socially conservative House members, led by 22 House Republicans, switched their votes as well, from no to yes.

"This vote kept it alive," said Representative Robert S. Hargraves, a Groton Republican. "It was either this or we were done."

Those switched votes allowed the measure to stay afloat, passing 121-77. That kept the possibility of other amendments alive. When the constitutional convention reconvenes later this month, lawmakers will be able to vote on a number of amendments that would substitute for the one approved yesterday. If the compromise amendment had been defeated, it would almost certainly have kept any gay-marriage measures off the ballot.

Ronald A. Crews, a spokesman for the Coalition for Marriage, said he may push to have two separate amendments considered by voters, one that would ban gay marriage and a separate one that would establish civil unions. Finneran has also spoken to lawmakers about that idea.

In addition, a measure offered by Representative Paul Loscocco, a Holliston Republican, is likely to be considered later this month. That amendment would ban gay marriage in the constitution, and leave it to the Legislature to define civil unions at a later date.

Two Democratic lawmakers, Representative David P. Linsky and Senator Stanley C. Rosenberg, are offering an amendment reaffirming the SJC ruling while making a clear distinction between civil and religious marriage.

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, told a group of supporters after the votes not to give up hope.

"We knew this was an uphill fight. We knew this was a long-shot strategy," Isaacson said. "There will be more votes to come in 2004. We cannot give up. We cannot let them discourage us. We can't let them make us feel defeated."

The hectic series of votes came a month after the Legislature spent two inconclusive days debating the same issues and four months after the SJC ruled that gay couples have a right to marry under the state constitution. Lawmakers were bombarded by calls, letters, and e-mails in recent months, and many said they were deeply torn about how to proceed.

Both sides of the debate turned out in force yesterday on Beacon Hill, chanting slogans and holding signs in numbers that far exceeded the crowds at the Constitutional Convention last month. State Police closed the State House at 1:30 p.m., half an hour before debate began, when the building's capacity of 3,400 was exceeded by at least 500, and they didnt let anyone into the building for about three hours.

At midafternoon, officials estimated that another 1,500 protesters clogged the curbs of Beacon Street in front of the building. By 9 p.m., about 500 protesters remained in the building, and several hundred were still along Beacon Street outside.

Backers of the compromise amendment said it was important to put something before the voters, after the SJC ruling established a right for gay couples to marry.

"We must trust the people to answer this question, whether they uphold the [SJC's] Goodridge decision or whether they reject it and replace it with something else," said Representative John H. Rogers, a Norwood Democrat and a top Finneran ally. "The only entity that can answer this question, of whether or not there should be civil unions in Massachusetts, is the people themselves."

Lawmakers who oppose both gay marriage and civil unions warned that if the state establishes civil unions equivalent to marriage, religious institutions may be forced by the courts to sanctify such unions. State Representative Vinny M. deMacedo, a Plymouth Republican, noted that his hometown was founded by people in search of religious freedoms.

"If you vote for this, you're putting religious freedoms" in danger, deMacedo said. He said that a h igh court that voted 4-3 to create gay marriages would think nothing of forcing churches to perform gay civil unions.

On the House floor, conservative lawmakers pleaded with their liberal colleagues not to support the amendment, arguing that they would be betraying their own principles by doing so. But many of those conservative lawmakers employed a similar strategy later in the day, when circumstances had changed.

Gay marriage activists argue civil unions would only provide rights and benefits conferred under state law and would not be recognized by other states. In addition, gay couples united in civil unions would be denied federal marriage benefits, such as those available under Social Security, the tax code, and inheritance law.

But in a shift from last month's Constitutional Convention, liberal lawmakers were almost entirely silent as the measure to ban gay marriage and create civil unions was debated early in the day. They said they viewed support for the amendment as their best chance to preserve gay marriage, with other proposals looming that would limit gay rights even further.

"There were some people who really didn't want to vote for a constitutional amendment at all. I fell in that group," said Representative Benjamin Swan, a Springfield Democrat. "It was a last resort."

The halls inside the State House had more gay-marriage supporters than opponents, but the two sides chanted just feet from each other outside the Senate chamber at one point. Gay marriage supporters sat on the floor and sang, "We shall overcome," and opponents chanted, "One man, one woman, God's plan."

That crowd outside the building was dominated by gay-marriage opponents, many holding signs calling homosexuality a sin. At least three activists were carrying full-sized wooden crucifixes to make their points.

Joseph N. Beane, 20, a teacher at the Independent Baptist Academy of the Anchor Baptist Church in Woburn, came with two other teachers and about 20 students, the youngest of whom was 7. One of the children standing across the street from the State House held a sign reading, "No sex is better than same sex."

"We love the sinner but not the sin," Beane said. "And that's what we teach the children also."

Globe correspondent Matthew Rodriguez contributed to this report. Rick Klein can be reached at rklein@globe.com.