Vote ties civil unions to gay-marriage ban

The Massachusetts Legislature voted yesterday to ban gay marriage and establish civil unions, approving a proposed constitutional amendment that would reverse the Supreme Judicial Court's historic ruling that legalized same-sex marriages.

Governor Mitt Romney immediately vowed to ask the court to block gay marriages until voters can decide the fate of the dual proposal in November 2006. The SJC decision legalizing gay marriages is set to go into effect May 17, and Romney said he wanted to avoid confusion that he believes would result if gay couples married and then the voters banned gay marriage.

"The Supreme Judicial Court should delay the imposition of its decision until the people have a chance to be heard," Romney said at a news conference shortly after last night's vote.

Attorney General Thomas F. Reilly, however, said minutes later that he would not take Romney's request to the SJC. Reilly said he believed that Romney lacked a valid legal basis for a stay, because the SJC has ruled twice in favor of gay marriage.

The SJC ruling would make Massachusetts the first state to allow gay couples to marry. The proposed consitutional amendment, on the other hand, would ban gay marriage but make Massachusetts the second state, after Vermont, to legalize civil unions.

The Legislature narrowly approved the amendment, 105-92, after the fourth intense day of debate in the past six weeks. The vote was met with a stunned hush by the gay-marriage supporters in the House gallery. It would ban gay marriage but establish civil unions that would provide the same state rights and benefits available to heterosexual couples through marriage.

Tenuous and shifting coalitions held together in the final vote, despite a series of parliamentary moves by liberal lawmakers to stop anything from moving forward. In the end, an amendment that was disliked by the political right and the political left was approved because it was the only measure that could draw the support of a majority of lawmakers.

"It took an awful lot of effort, and it is designed principally to find a comfortable consensus in the middle, recognizing that there are going to be people on both sides of the debate who hold sincere, deeply held, principled views," House Speaker Thomas M. Finneran said after the vote. "I'm thrilled with the outcome."

A Boston Globe poll last month found that 53 percent of Massachusetts residents opposed gay marriage and 60 percent supported civil unions. In addition, 71 percent of respondents said they wanted voters to be able to define marriage, not the courts or the Legislature.

The measure will next be considered during the 2005-06 legislative session and would appear on statewide ballots for final approval if it is passed by lawmakers then.

Yesterday's vote, however, has no immediate impact on the legal state of gay marriages, which is why Romney is seeking a stay from the court. Finneran and Senate President Robert E. Travaglini said the governor is free to ask for a stay and said they would not play a role in that endeavor.

Gay-marriage supporters vowed to fight on despite the setback, with the next battle to be waged in the next legislative session. Speaking to supporters in Nurses Hall at the State House, Arline Isaacson of the Massachusetts Gay and Lesbian Political Caucus said the close tally on the final vote was a victory in itself.

"Today, fear and prejudice won out over courage and over decency," Isaacson said. "Do not be discouraged. Today is a loss, but it's only the beginning of the battle, not the end."

Gerry D'Avolio, executive director of the Massachusetts Catholic Conference, said he would have preferred that the Legislature not tie a gay-marriage ban to establishment of civil unions. But he said he was pleased that lawmakers' vote would cast "a substantial cloud over any marriage licenses that might be issued" as a result of the SJC decision.

"Today's joint session rejected the activist ruling of the Supreme Judicial Court," D'Avolio said. "Thousands of concerned Catholics, at a time of great trial for the church, refused to be silenced and rose to the occasion to make their voices heard as never before."

The final version of the amendment differed slightly from the one advanced by the Legislature earlier this month, but it cannot be changed again if lawmakers want to advance it to the November 2006 ballot. Besides banning gay marriage and creating civil unions for same-sex couples, it would make clear that gay couples united in civil unions would not be entitled to federal marriage rights and benefits.

Senate Republican leader Brian P. Lees, one of the amendment's main sponsors, touted the proposal as a way to protect the traditional definition of marriage, while ensuring that gay couples who marry starting this spring keep the rights they're granted even if the gay-marriage ban ultimately passes. Only banning gay marriage and establishing civil unions in the same stroke would make that possible, Lees said.

It is not yet clear what will happen to those couples who marry in the interim, but Lees said that at the very least, they would be guaranteed marriage's rights and benefits through civil union.

"It protects the rights and benefits of those gay and lesbian couples that are going to get married after May 17," said Lees, of East Longmeadow. "If we adopt one of the all-or-nothing amendments, it will create legal chaos."

Lawmakers who support gay marriage, however, blasted the amendment, saying it will roll back the civil rights of gay couples in the wake of the SJC ruling.

"This vote is a vote to take away legal protections from citizens of this Commonwealth," said Representative Elizabeth A. Malia, a Jamaica Plain Democrat who is openly gay. "Adding language that creates two classes of citizens will deny myself, my family -- and many people you know and love and respect -- their basic rights."

Many liberal lawmakers supported the measure on two preliminary votes yesterday, in votes they took to prevent what they viewed as more objectionable measures from passing. Their votes helped push the amendment forward, 116-81, and 111-86.

On the final vote, the gay-marriage supporters switched from yes to no, but a roughly equal number of conservative lawmakers switched from no to yes, allowing it to pass. "This amendment stinks, but at least gives the people a chance to vote for something," said Representative James H. Fagan, a Taunton Democrat who said he was voting for the final amendment only reluctantly.

Many House Republicans followed Romney's urging to support the measure in order to get something on the ballot, and they provided the crucial margin on the final tally. Senator Jarrett T. Barrios, a Cambridge Democrat, said that means Romney personally can be held responsible for the amendment, even though he has come out against civil unions.

"There were enough `no' votes to kill this," Barrios said. "The governor is in the unique and curious position of now creating civil unions, despite every promise to the contrary."

Opponents of same-sex marriage were generally pleased with the final vote, but were still upset that they couldn't get on the ballot a simple proposal on gay marriage, one that isn't tied to civil unions. Ronald A. Crews, a spokesman for the Freedom to Marry Coalition, called it a "meager victory" that would essentially blackmail voters into supporting something they don't want so they can protect the traditional definition of marriage.

Representative Viriato Manuel deMacedo said that tying together a gay-marriage ban with establishment of civil unions was like forcing John F. Kerry supporters to vote for Kerry and George W. Bush at the same time. He predicted it will fail at the ballot box in 2006.

"We are giving the people a false choice," said deMacedo, a Plymouth Republican. "All of you people . . . in a rush to get something to the voters, you are getting nothing to the voters."

The crowds inside and outside the State House were smaller than they were two weeks ago, when the Legislature last met in a Constitutional Convention to debate the gay marriage issue. But the atmosphere was intense, with the two sides mingling outside the House chamber. Dueling chants resulted in a cacophony of rhythms and shouts.

State Police Lieutenant Paul Maloney said authorities were closely monitoring demonstrators inside the State House to head off potential confrontations and said officers had to intervene to prevent possible violence more often than they have at previous Constitutional Convention meetings. One lawmaker, Senator Brian A. Joyce of Milton, received a telephone death threat, prompting heightened security around Joyce and the House chamber.

Even as debate continued on the House floor, eyes were already focusing on this fall's legislative elections. Crews warned that voters across the state will be well informed of the votes their legislators took. The Heritage Alliance, a newly formed political action committee, released a list of 10 legislative candidates, eight Republicans and two independents, who are planning to use Democratic lawmakers' support for gay marriage in their campaigns against incumbents.

Like the three previous days of the convention, yesterday's meeting was rife with political posturing, procedural maneuvering, and temporary alliances. The day began with Republicans accusing Travaglini of trying to wire the convention by not allowing their proposals to come forward, and lawmakers switched their votes without knowing for sure what the final outcomes would be.

State Representative Michael E. Festa, a Melrose Democrat who supports gay marriage, said the fact that so many of his colleagues were uncomfortable with their votes bodes well for his side.

"I'm optimistic -- if it gets on the ballot, it will be defeated," Festa said. "There is a lot of division in their ranks, and that's good. The victory they've achieved is truly Pyrrhic."

Raphael Lewis and Yvonne Abraham of the Globe staff and Globe correspondent Matthew Rodriguez contributed to this report. Rick Klein can be reached at rklein@globe.com.