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The court's unclear message

THE SUPREME Judicial Court's Tuesday decision on gay marriage raised one huge question on Beacon Hill: What, precisely, does it mean?

Was the state's high court telling the Legislature to bring law into accord with a ruling that in six months will give gays and lesbians the full right of civil marriage? Or, by staying its decision for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this decision," was the SJC offering lawmakers time to work out a remedy of their own, possibly short of marriage itself, but that affords homosexuals "the protections, benefits, and obligations of civil marriage"?

Or is the slender majority so tenuously tethered together that the court can't speak with crystalline clarity?

Governor Romney said his interpretation was that a civil union arrangement would satisfy the justices. Not so, declared gay activists, who said their reading was that the court had left the Legislature no wiggle room.

Senate President Robert Travaglini said he and his legal experts were perplexed by a decision that offered time to act but seemingly little latitude to affect the ultimate outcome.

Opinions abound, but the state has one official legal expert, and that's Attorney General Thomas Reilly. So what does the Commonwealth's top lawyer think the landmark decision means?

Reilly says that after extensive evaluation by his office, he believes the court was giving the Legislature six months to propose a remedy of its own -- a remedy that might stop short of formal marriage.

Reilly bases his conclusion on the last few paragraphs of the majority opinion, noting that "when you get down to the `we declare,' the focus is on the protections, benefits, and obligations of marriage."

Here's the pivotal sentence: "We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."

"My interpretation of the court opinion is that if you satisfy the court that those basic rights and benefits and protections are afforded to same-sex couples -- and I believe that can be done and should be done -- that would satisfy the court," Reilly said in an interview.

Therefore, says Reilly, the best course would be for the Legislature to fashion a solution that addresses the court's concerns by extending those rights to gay couples. "Then you could go back to the court and say, `This is our best work, this is what we have come up with to address the issues you have raised. We are asking for an advisory opinion as to whether or not it satisfies the concerns raised by the court.' "

Now, the Legislature has heretofore been laggardly about addressing this issue. As I've argued before, it's fundamentally unfair for gay and lesbian couples to be excluded from the many benefits marriage affords heterosexuals.

But the attorney general has a point when he says that the proper place for this sort of public policy to be made in is the Legislature.

"It is a four-to-three decision, which all the more cries out for legislative action," Reilly says. "We don't make social policy in such profound ways through a four-to-three decision of the court rather than through the actions of the people's elected representatives."

What would be the advantage of legislative action? It would lend the eventual outcome the legitimacy any quantum leap forward needs if it is to gain acceptance by the public. Second, legislative deliberation might well lance the anger that seems all but certain to build if a change of this magnitude is simply imposed from on high.

Indeed, absent such a process, Romney fears the state will see a backlash, possibly in the form of a constitutional amendment forbidding gay marriage.

"I am hopeful that the Legislature will deal with this in a fair, even-handed way and we can avoid the divisiveness that could very well come out of a constitutional amendment," Reilly said. "I don't want to see a situation where we pit people against each other."

A full legislative debate might just move the matter beyond posturing and prejudice to the claims of conscience and fairness -- and by so doing, help all citizens develop an awareness of both the overarching humanity and the everyday concerns they share with gays and lesbians.

Scot Lehigh's e-mail address is

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