Magazine article The Advocate (The national gay & lesbian newsmagazine)

Waiting at the Altar: If the Excitement of the Massachusetts Marriage Ruling Didn't Leave You Light-Headed, Waiting Another 138 Days (from the Date of This Magazine Might

Magazine article The Advocate (The national gay & lesbian newsmagazine)

Waiting at the Altar: If the Excitement of the Massachusetts Marriage Ruling Didn't Leave You Light-Headed, Waiting Another 138 Days (from the Date of This Magazine Might

Article excerpt

"There's only one way to read this, from my perspective," says Mary Bonauto the day after the Massachusetts Supreme Judicial Court rifled that it was unconstitutional to exclude gay couples from marriage. "We won the right to marry."

Bonauto, an attorney at the Boston organization Gay and Lesbian Advocates and Defenders, was lead counsel in the case, so she could be excused for having a biased perspective. But most advocates for same-sex marriage say no excuse is necessary.

"There's no wiggle room here," says David Buckel, director of Lambda Legal Defense and Education Fund's Marriage Project and the lead attorney on a similar marriage case in New Jersey. "There's no ambiguity: Marriage is the remedy."

And Evan Wolfson, executive director of New York City-based Freedom to Marry, declares, "This is it, it's done--it's marriage!"

Marriage opponents, however, find less clarity in the November 18 decision. The sticking point, they say, is the 180 days justices gave the legislature to respond to the ruling. They say the six-month stay is the court's way of providing lawmakers enough leeway to pass nonmarriage legislation--such as civil unions or domestic-partnership packages--and still meet its mandate.

Republican governor Mitt Romney immediately declared his opposition to the court's ruling. "Marriage is an institution between a man and a woman," he said in a prepared statement. "I will support an amendment to the Massachusetts constitution to make that expressly clear. Of course, we must provide basic civil rights mid appropriate benefits to nontraditional couples, but marriage is a special institution that should be reserved for a man and a woman."

Romney has strong allies in the legislature, including the powerful speaker of the house, Democrat Tom Finneran, who also favors a constitutional amendment banning gay marriage. A Finneran spokesman tells The Advocate, "We don't know what the legislative response will be at this time. I don't think anyone does."

Unlike in Alaska and Hawaii--where court rulings in favor of gay marriage were nullified by legislative action amending those states' constitutions--it would take at least three years for such an amendment to take effect in Massachusetts. It first must, be approved during two legislative sessions (one in 2004 and another in 2005), and it then would have to go before voters--in November 2006 at the earliest. A joint session of the legislature, called a constitutional convention, has been scheduled for February 11 to take up the proposed amendment.

Even some legal scholars supportive of same-sex marriage say the ruling could be interpreted to allow a solution that falls short of full marriage equality. "The coral said that those in same-sex rations have to be ensured the same privileges and responsibilities" as married heterosexuals, says Nathaniel Persily, a constitutional law professor at the University of Pennsylvania. "It does not say it has to grant gay marriages per se."

Adds Shari Levitan of the Boston-based law firm Holland and Knight: "I personally don't read civil unions as passing muster trader this court ruling. But who's to say the legislature won't purposely thumb its nose at the court and pass something like a civil unions bill just to force a showdown?"

That's exactly what Greg Johnson, associate professor at Vermont Law School and cocounsel on the Alaska marriage case, worries opponents might try in order to drag out the legal battles until the constitutional amendment can pass. "This whole thing could be tied up in the courts for years and we won't see civil marriage or civil union or anything come out of it," he says.

Emphasizing that the Massachusetts ruling is "a bold, courageous opinion" that represents the strongest American court statement on gay marriage, Johnson points to Hawaii, Alaska, and even Vermont in cautioning, "There is always a difference between legal intent and political reality. …

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