Opponents lose bid to halt gay marriage

Opponents of gay marriage failed in their last-minute attempt to derail gay marriage yesterday when the US Supreme Court refused to grant an emergency order halting same-sex marriages in Massachusetts, hours after a federal appeals court in Boston had denied a similar request. The rejection by the Supreme Court removed the remaining legal impediment to same-sex marriage beginning Monday in Massachusetts.

“The last of the last-ditch efforts to derail marriage rights for gay and lesbian couples is over,” said Mary Bonauto, legal director of Gay and Lesbian Advocates and Defenders, whose suit on behalf of seven gay couples led to the Massachusetts Supreme Judicial Court decision legalizing same-sex marriage in the state. “All of these couples who have been waiting for decades to take legal responsibility for each other will finally be able to do that.”

If gays are allowed to wed, "marriage as universally understood for millenia of human history will be forever changed; chaos will ensue," the Supreme Court was told in a 40-page brief filed yesterday afternoon by Mathew Staver, president and lawyer for the Florida-based Liberty Counsel, one of the groups that filed suit on behalf of the vice president of the Catholic Action League and 11 state lawmakers.

But early last evening, just 2 1/2 hours after the appeals court ruling, the Supreme Court denied the request for an injunction without comment, after Justice David H. Souter referred the case to the full court.

The denial seemed nearly certain after the US Court of Appeals for the First Circuit had refused to issue an emergency order, finding that it was unlikely that same-sex marriage opponents would win on their assertion that the state's Supreme Judicial Court exceeded its authority when it ruled last November that same-sex couples can legally marry in Massachusetts.

The appeals court will hear arguments in the case June 7.

"Emergency appeals are usually reserved for extraordinary situations like death-penalty cases," Staver said. "But we believe this case is also extraordinary, and we felt it was worth asking the Supreme Court to step in."

Within an hour of the Supreme Court's rejection of the injunction, about 400 opponents gathered at Faneuil Hall and insisted the fight will continue.

"In this 11:59 hour we want to remind people the battle is not over," said Kristian M. Mineau, the acting president of the Massachusetts Family Institute. "There's a long race here. . . . There's still hurdles."

He cited efforts to amend the Massachusetts and US Constitutions to ban gay marriage, pointing out that other states will refuse to recognize same-sex marriages performed in Massachusetts.

In rejecting the request for an injunction to block gay marriages, the appeals court challenged the plaintiffs' argument that the SJC violated Article 4, Section 4 of the US Constitution, known as the Guarantee Clause, which says that the United States shall guarantee each state a republican form of government with branches sharing power.

The appeals court decision by Chief Circuit Judge Michael Boudin and Circuit Judges Kermit V. Lipez and Jeffrey R. Howard said that for much of its history the Supreme Court has refused to take cases filed under the Guarantee Clause. Constitutional law specialists have said the clause was designed to prevent state governments from being overthrown by rebel forces.

The case of Goodridge v. the Massachusetts Department of Public Health, which resulted in the legalization of gay marriage, "does not establish permanent martial law or declare the Commonwealth a monarchy; and it cannot plausibly be argued that every disagreement about allocation of power within a state government -- even a very important disagreement -- raises a question" under the Guarantee Clause, the appeals court wrote.

To prevail on their argument that the SJC usurped the power of the Legislature in ruling that gays have the right to marry, the plaintiffs would also have to show that the SJC "misconstrued state law" and that "a federal court should disregard the long-standing practice of federal courts to treat the decisions of the highest state courts as controlling interpretations of state law," the federal appeals court wrote.

As same-sex couples prepare to marry, some of those who preside over civil weddings have decided to give up their jobs rather than be forced to marry gay couples. By yesterday, 11 justices of the peace had resigned their posts, said Claire M. Mentus, president of the Massachusetts Justices of the Peace Association. After the SJC ruling legalizing same-sex marriage, some of the state's 1,200 justices of the peace said they would not officiate at gay weddings. But last month, Governor Mitt Romney's legal counsel told justices that they cannot legally refuse to marry gay couples.

Kathleen Harvey, a justice of the peace from Bellingham, mailed her resignation letter yesterday morning on her way to work. Harvey, a Catholic who has been a justice of the peace since 1987, waited until the final days before same-sex marriage becomes legal, hoping that a last-minute change might give her a reprieve.

"I just felt uncomfortable doing those sorts of ceremonies," she said. "It was just a personal thing."

Raphael Lewis of the Globe staff and Globe correspondent Adam Krauss contributed to this report.