Weeks ahead crucial for foes, supporters of gay marriage

Long before Election Day 2006 -- the date when voters could cast ballots on a constitutional amendment that would decide the future of gay marriage in Massachusetts -- another date looms that may be far more crucial: May 17, when the state is expected to permit gays and lesbians to marry.

Supporters and opponents of gay marriage agree that if licenses are issued next month as expected, the amendment that lawmakers recently passed to ban gay marriage and establish civil unions in 2006 will probably lose steam. So now is make-or-break time for opponents of same-sex marriage, who are pressing Governor Mitt Romney to block the licenses any way he can, even if that means tying the matter up in court.

"We're still hopeful Romney is going to act in what we believe to be his full constitutional authority, to delay and/or prevent the implementation of the Supreme Judicial Court decision" granting marriage licenses, said Ronald A. Crews, spokesman for the Coalition for Marriage.

From May 17 forward, the gay-marriage battlefronts will multiply and could extend for at least 2 1/2 years. The issue will be fought in this November's legislative races, as activists from both sides carry through on their threats to target lawmakers who have defied their will on gay marriage. It will be fought on the airwaves and in the newspapers, as advocates spend millions of dollars on advertisements. It will be fought on Beacon Hill, as the amendment comes up for reconsideration and some opponents seek a gay-marriage ban without a civil unions provision. And it will be fought in scores of courtrooms across the country, as couples married in Massachusetts test the limits of their new rights.

But first comes May 17, the date set by the Supreme Judicial Court when it legalized gay marriage some five months ago.

The next five weeks

For strategic reasons, as well as their underlying opposition to same-sex marriage, opponents are eager to block the SJC ruling moving from concept to reality on May 17. The future of the constitutional amendment approved by state lawmakers in a special constitutional convention last month may depend on whether the state issues marriage licenses between now and 2006. "An amendment may prove more difficult to pass" if licenses are granted, Crews said. "The argument would be made by homosexual activists that [an amendment would be] taking away a right they already have. I believe there are a lot of folks who may support us on the issue but who, out of sympathy, would be swayed by that kind of an argument."

For Romney, the options for holding off the May 17 change might include issuing an executive order that would tie the matter up in court, for example, or changing state rules to make the licenses virtually impossible to get. But Romney's spokesman sounds resigned to the issuance of licenses on May 17.

"Going forward, our options are extremely limited," said Eric Fehrnstrom, the governor's communications director. Romney will not be obstructionist or act outside the law, he added, but the governor is open to legal ways to stop the marriages.

Those who support gay marriage say its occurrence will change so little in other people's lives that support for an amendment will fall away. Andrew Koppelman, a professor of law and political science at Northwestern University, agrees.

"The argument for a constitutional amendment is that if same-sex marriages are recognized, something terrible will happen," said Koppelman. "When we get to 2006, one of the most evident facts will be that the sky has not, in fact, fallen. It's hard to imagine the case for the amendment becoming stronger between now and then."

Romney asked Attorney General Thomas F. Reilly to seek a stay of the SJC ruling to wait until voters consider the amendment in 2006, but Reilly refused. City and town clerks have been notified that the state intends to train them on gay marriage procedures early next month, but have not been given specifics.

Veterans of the battle believe Romney and other opponents of gay marriage in the State House are still trying to find some way to prevent the issuance of licenses.

"We're convinced that Romney is playing to a national audience, and believes it's in his best interests politically to do everything in his power to block the marriage licenses, including very long-shot strategies that they know ultimately will fail," said Arline Isaacson, cochairwoman of the Massachusetts Gay & Lesbian Political Caucus.

The days after May 17

If opponents fail to put off the SJC's ruling, legal fights will probably follow. Reilly has said couples who live in one of the 38 states that have banned gay marriage will not be able to marry in Massachusetts. A 1913 law prohibits Massachusetts from granting marriages to residents who would be barred from marrying in their home states. The state is expected to enforce that law, but advocates on both sides of the issue expect that couples from out of state will slip through and get married, setting up legal fights over the definition of residency and, perhaps, an outright challenge of the 1913 law.

Other suits will arise over the rights of married couples who move to another state, and those of married couples who happen to be traveling elsewhere.

"There will be fights, but I don't think any of them will happen in Massachusetts," Koppelman said. "They'll happen in the rest of country. You guys can sit back in Massachusetts and watch the rest of the country wail and gnash teeth, but the law in Massachusetts is absolutely clear."

The limits of same-sex marriage will be defined not before Supreme Court justices, but before local and probate judges, lawyers said. And the battles will be waged over quotidian matters: custody battles, health insurance benefits, spousal immunity from testifying.

"The general rule is, if it looks like you're playing games by trying to evade your own state's marriage regulations, courts are going to be unsympathetic," said Koppelman. "A powerful claim is when you make your home in Massachusetts, and you just happen to be traveling in another state where the validity becomes relevant." One example: "if someone gets into an auto accident and is hospitalized and someone needs to make medical decisions for them, and the hospital is not in Massachusetts."

Inevitably, gay marriages made in Massachusetts would collide with the federal Defense of Marriage Act of 1996, which denies federal rights to same-sex couples. Federal employees in the Bay State will sue their employer for health insurance benefits for their same-sex spouses, Koppelman said. Because the Supreme Court could find the 1996 law unconstitutional, a movement has begun to amend the US Constitution to deny gay marriage.

For the advocates who have painstakingly pushed for gay marriage in Massachusetts over the years, the litigation that will spring up after May 17 will not be welcome. Their strategy has been to slowly change minds by presenting the public with gay families in stable relationships. They would prefer that gay marriages have time to sink in for a while before fractious courtroom battles begin. But once gay and lesbian couples begin to marry, those who led the charge will have little control over ensuing litigation.

Battles: 2004 and beyond As the court battles begin, state legislators will be running for reelection, and both sides are planning to reward some and punish others for the votes they took on gay marriage. Supporters and opponents of same-sex marriage will send money and volunteers to legislators they like, and to the opponents of those they do not. Advocates on both sides will draw on newly swollen databases for donations to political action committees in an attempt to reconstitute the Legislature to favor their position.

"We will absolutely and positively target some legislators who voted against us," said Isaacson. "Our first priority is helping legislators who voted with us."

Campaign funds will be collected through the PACs of the groups that make up MassEquality, the coalition of groups that has fought for marriage rights for same-sex couples, Isaacson said. Their opponents, the Coalition for Marriage, are establishing a new PAC, said Crews. Neither Isaacson nor Crews would name any of the legislators they will try to unseat until after April 27, when candidates file their papers. But some legislators, Democrat Brian A. Joyce of Milton, for example, have already said they are facing opponents who intend to take them down because of their support for gay marriage.

Both sides aim to remake the Legislature before the state constitutional amendment comes up for a second consideration in the 2005-06 legislative session. A second ballot initiative, a citizen petition banning gay marriage without civil unions that is aimed at the 2008 ballot, is also to be considered in that session, along with proposed legislation banning gay marriage, which would make the amendment moot.

If the current proposed amendment is placed on the November 2006 ballot, a huge public campaign will begin. When legislation banning gay marriage made it to the ballot in California in 2000, those supporting it poured more than $6 million into the state, Crews said.