Stalled out on gay marriage.

Stalled out on gay marriage.

Stalled out on gay marriage.

The law, lawyers, and the court.
Feb. 13 2004 1:41 PM

Dispatch From the Massachusetts Constitutional Convention

The tragic lives of state legislators.

After two days of sniping, griping, and groping around in the Massachusetts legislature, only two things were clear: Legislators in the nation's most liberal state don't like gay marriage, and they can't agree on an alternative.

The state's two-day constitutional convention recessed Thursday with no consensus on whether to ban gay marriage, create civil unions, or let stand a state supreme court ruling allowing same-sex marriage. The stalemate ironically leaves same-sex marriage as the law in Massachusetts—at least for now—to the consternation of most of its legislators.

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The skepticism toward gay marriage in Massachusetts, tea-dumping home of American individualism, demonstrated as well as any poll the country's doubts over the issue. The amendments debated Wednesday and Thursday would have made Massachusetts the 39th state in the country to define marriage as a union only between one man and one woman. Legislators will return to debate the issue again after a monthlong holiday.

The Massachusetts amendment fell apart over the proposed inclusion of civil unions. Nineteen hours of debate produced a walkout, a filibuster, a couple of dirty tricks, and a deeply fractured legislature. The members came two votes short of banning gay marriage, then six votes short of establishing civil unions, and then degenerated into a morass of grandstanding, grimacing, and gavel-pounding.

Around the country, lawmakers are racing to see who can denounce same-sex marriage first. Earlier this week, word leaked that President George Bush plans to push for a federal constitutional amendment that would limit marriage to heterosexual couples. (Massachusetts Sen. John Kerry, the likely Democratic presidential nominee, also opposes gay marriage.) If a Defense of Marriage Act passes in Democrat-dominated Massachusetts, the feeling goes, there are few if any states that would oppose such a measure. If you can make it here, you'll make it anywhere.

The name-calling started with November's Massachusetts Supreme Court opinion approving gay marriage; an unusually heated decision that claimed "the marriage restriction is rooted in persistent prejudices." No one likes to be called a bigot, especially when he has to run for re-election. So House Speaker Thomas M. Finneran started off the constitutional convention on Wednesday by calling the majority opinion "libelous and defamatory." Finneran, who must have spent long nights in consultation with his thesaurus, added that the court was also intrusive, stinging, and vituperative. But Finneran quickly became the subject of some choice adjectives himself, by using those opening remarks to sneak a new proposed amendment to the top of the day's agenda. It was the first of seven such amendments, each splitting the hair at a slightly different angle.

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A small but vocal minority of the legislature wants no constitutional amendment at all, keeping Massachusetts as the only state to endorse same-sex marriage. The majority wants a ban on gay marriage but is divided on whether to create civil unions. Senate President Robert E. Travaglini and his followers say yes to such unions. Finneran and his troops say maybe later (legislator-ese for "when pigs fly").

It says a good deal about the political power of suffering that speaker after speaker came to the podium, shaking a finger at the court and at his colleagues, then trying to out-victim the previous legislator. One representative sympathized with gays because she knew the pain of growing up a working-class suburb. Another had suffered for being a foster child. There was the representative whose Armenian father "was subjected to hostile, second-class citizenship." The list of long-sufferers included Catholics, Jews, Italians, Irish, women, and Alabamians. There were references to slavery and Nazism. There was the inevitable story about a 6-year-old with cancer.

The crowning moment came from Sen. Diane Wilkerson, who broke down in tears during a reference to her own tax-evasion conviction. Everyone, it seems, can understand persecution.

The "we-feel-your-pain" theme abated only twice, when the two openly gay legislators were actually permitted a moment to feel their own. "The human aspect of this debate is very important to understand," said Sen. Jarrett T. Barrios. "If this were to pass, I would be denied basic human rights that most of you don't even know you have." The room stood silent for the first time in two days as Barrios talked about calling the hospital for his sick 7-year-old, only to be told that he was not listed as the boy's parent. The marriage amendment, he said, would be "setting up a two-tiered system, which for the first time would use the Constitution to take away rights, not to protect them." The speech was met by a bipartisan round of cheering and backslapping, then the room immediately returned to a discussion of what form a gay-marriage ban should take.

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The women in red suits and men in power ties ultimately couldn't decide whose victimhood carried the most cachet, so amendment after amendment failed. Finally, the legislature found a change everyone could agree on—a syllabic one—and the Lees Amendment gained traction by becoming the Lees-Travaglini-Finneran-Rogers Amendment. The amendment was a middle-of-the-road mishmash, hashed out on scraps of paper during a brief recess. The bill would have created civil unions but with requirements no couple could possibly meet. It defined marriage as a union between a man and a woman and provided that same-sex couples could have civil unions "if they meet the requirements set forth by law for marriage between a man and a woman."

In other words, it seems gay couples can have civil unions if they meet all of the requirements of straight marriage, of which one requirement is that marriage must be between a man and a woman. So, gay couples must be heterosexual before they can get married. A banner day for civil liberties.

Logical or not, the compromise amendment gathered steady support, and by 10:30 p.m. Thursday it appeared on the verge of passing. But before proponents could call a vote, Sen. Brian A. Joyce came to the rostrum, cleared his throat, and started reading the newspaper. After a leisurely 20 minutes, he yielded so that another senator could discuss a recent lunch function, and she yielded so that another could ruminate on her wedding anniversary. The filibuster was underway. Conservatives, desperate to get some sort of amendment passed, heckled, pounded desks, and even staged a strike. But they had only an hour and a half before the convention adjourned, and 90 minutes is chump change for a filibuster.

On the same day Massachusetts decided not to decide, Californians Del Martin and Phyllis Lyon became the nation's first same-sex couple to get married. Yesterday, San Francisco Mayor Gavin Newsom issued marriage licenses to 118 gay and lesbian couples, starting with 83- and 79-year-old local legends Martin and Lyon.

It's not clear whose honeymoon will be shorter: couples in California or those in Massachusetts. Gay-marriage opponents in San Francisco plan to go to court today to seek an injunction that would prevent further same-sex marriages, followed by challenges to the 90 marriages performed yesterday. Such marriages are outlawed by California's Defense of Marriage Act, passed by referendum in 2000. Massachusetts marriages, on the other hand, may last at least two and a half years. Even if the legislature eventually passes an amendment banning gay marriage, it can't get onto the ballot until November 2006. So, starting on May 17, same-sex couples will receive all of the state-apportioned benefits that heterosexual couples do, including child-custody rights, health care, and survivor benefits, although they are ineligible for federal benefits due to the federal DOMA.

After all the yelling and screaming, then, all we know for sure now is that in three months, same-sex couples in Massachusetts will still be able to take each other as long as they both shall live, or at least for a couple of years.