Mass. stalls on gay rights law

BOSTON -- Massachusetts House and Senate leaders Monday struggled to craft a revised constitutional amendment that would ban same sex marriages, but give gay couples some rights under civil unions.

The strategy was designed to win enough votes for passage of the amendment later this week by reaching out to lawmakers who want to overturn the historic Supreme Judicial Court decision that declared gay marriage constitutional as well as those who would like to extend some rights and benefits to gay couples.

As currently written, an antigay-marriage amendment sponsored by state Representative Philip Travis of Rehoboth defines marriage as only a union of a man and woman and contains language that some specialists say would bar civil unions. Some wavering lawmakers say the amendment appears punitive and would use the state constitution to restrict rights, legislative strategists said.

In another development, House Speaker Thomas Finneran and several of his lieutenants were considering a bill that would block the issuance of same-sex marriage licenses in May when the SJC decision takes effect. The measure would also define marriage as a union of a man and woman, but provide civil unions for gays.

Legislative staffers were also trying to decide who should get the 120 seats available for the public in the House chamber. One official said the staff would most likely set up television sets in two rooms inside the State House for the overflow crowd to watch the proceedings.

With all eyes on Massachusetts, a poll taken after last week's SJC opinion affirming gay marriage shows that by a 2-to-1 ratio, Americans do not want laws in their states that would legalize gay marriages. The National Annenberg Election Survey of 814 adults was conducted Feb. 5-8 and has a margin of sampling error of plus or minus 3 percentage points.

No reliable legislative source Monday could provide a vote count on the Travis amendment. Most legislators and lobbyists gave its supporters a slight edge, but still short of the 100 votes that are needed. Many lawmakers--between 25 and 30 in number--are still undecided.

The compromise for the Travis amendment that the Senate and House leaders are considering would keep the language that defines marriage as solely a heterosexual union. It would strike a final sentence that states, "Any other relationship shall not be recognized as a marriage or its legal equivalent." That phrase, according to legislative leaders, would be replaced with a statement that civil unions "should be authorized and shall be provided...."

Senate Minority Leader Brian Lees, who has been involved in the negotiations to add the civil union language to the Travis amendment, said he and other leaders were trying to defuse opposition among lawmakers who would not support the amendment if it barred civil unions.

"I am optimistic we will get the vote with the additional language," Lees said. "We are all grappling to come up with a compromise."

"If there are enough votes to put civil unions on the amendment, I would see that as less restrictive," said Senate assistant majority leader Robert Havern, a Democrat from Arlington, who supports gay marriage but said he will consider a compromise.

Gay rights advocates panned the move by House and Senate leaders to find middle ground as "empty promises."

"This compromise, while interesting, still leaves us with the terrible situation of enshrining discrimination in the constitution," said Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Caucus. "If a ballot question passes that prohibits marriage regardless of whether it gives civil unions, we will have lost our opportunity for marriage for decades to come. That is obscene."

Shawn Feddeman, a spokesperson for Governor Mitt Romney, said he would oppose an attempt to place civil unions in the constitution. "The governor believes the amendment should be narrowly written to preserve marriage as an institution as between a man and a woman," she said. "Any rights and beneifts extended to same sex couples should be statutorly defined and not written into the constitution."

Lawmakers also struggled with the SJC's rulings that say gay couples can be married in Massachusetts starting May 17.

A constitutional amendment could go before voters in November 2006, placing people who were married in a legal limbo.

Finneran and other House lawmakers suggested legislation to quickly declare marriage as as heterosexual institution--not waiting for the constitutional amendment to pass--and allow civil unions. The House plan also would attempt to head off the issuance of marriage licenses.

But senior legislative leaders said Monday that Finneran's legislative approach was running into strong opposition from Senate President Robert Travaglini and his aides who feel the court has made clear that, under the Massachusetts constitution, the refusal to grant marriage licenses to same sex couples is unconstitutional.

One leadership source said Travaglini, after meeting with Finneran, contacted Attorney General Thomas Reilly, who insisted that an attempt to block the issuance of marriage licenses to gay couples would violate the court's ruling and be overturned. Tavaglini also checked with former attorney general Francis Bellotti and received the same response.

Sen. Havern also dismissed Finneran's plan for a statute to provide civil unions and bar the issuing of marriage licenses. "I don't see much hope for a statutory resolution to this," Havern said. "That possibility is gone."

One approach floated among senators would expressly state that any same-sex couples married after May 17 would be considered to be in a civil union if the constitutional amendment were to pass.

State Representative Eugene O'Flaherty, a Democrat from Chelsea and the House chairperson of the joint committee on the judiciary, confirmed that members of Finneran's team are trying to put together a majority.

"These discussions are currently taking place," O'Flaherty said, referring to the changes proposed for the amendment to include civil unions. "There's been no clear determination of where the house members are on this issue."

Finneran's team, in pushing the bill, is arguing that statutes, not just the constitution, must contain a "rational basis" for restricting marriage to heterosexuals because the SJC cited the absence of a clear reason. But the court directly addressed the issues of "rational basis" and civil unions when it reaffirmed its opinion last week.

"For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain," the court's majority wrote. "The bill (a proposed civil union statute proposed by the Senate and sent to the court for review) would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits."

Meanwhile, gay marriage advocates got a big helping hand Monday when news surfaced that Robert J. Haynes, president of the AFL-CIO of Massachusetts, which has 400,000 members, has sent a letter to the entire Legislature urging lawmakers to defeat the proposed amendment banning gay marriage. In his letter, Haynes warned lawmakers that the union might consider the vote in endorsments this fall. Globe correspondent Matthew Rodriguez contributed to this report.