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Mulling way to stop gay weddings

As SJC appeal ruled out, Romney eyes his options

LITTLETON -- Rebuffed by Attorney General Thomas F. Reilly, Governor Mitt Romney acknowledged yesterday that he won't be able to get a judicial stay to block weddings of same-sex couples beginning May 17. But the governor emphasized that he is exploring other avenues to block the issuance of marriage licenses to gay couples.

"He's made his decision; I'm not going to pursue that further," Romney said of Reilly's refusal to seek a delay of the Supreme Judicial Court's ruling legalizing gay marriage, which takes effect on May 17. "Of course, I'm also considering other options. I don't have anything to report in that regard, but stay tuned."

Lawmakers and activists on both sides of the issue suggest that Romney may be weighing several options, including an executive order to block the issuance of licenses to gay couples; proposing a law to prevent issuance of those licenses; or backing another bill, being pushed this week, that would abolish marriage entirely and create civil unions for heterosexual couples, as well as gay couples.

On Monday, the Legislature approved a proposed constitutional amendment that would ban gay marriage and establish civil unions. But lawmakers must pass it a second time in the 2005-06 legislative session, and voters must approve it, before the constitution would be amended. The earliest the measure could appear on the ballot is November 2006, and gay-marriage opponents are determined to prevent same-sex marriages from taking place between May and that date.

There is "a whole series of options that have been brought forward by various groups within our state, outside the state, law firms, legislators" to stop gay marriages in May, Romney said, though he declined to detail the options or who is suggesting them.

Ronald A. Crews, a spokesman for the Coalition for Marriage and a leading opponent of same-sex marriage, praised Romney's efforts. Crews said he believes there are ways the governor can stop same-sex marriages from taking place, though he said he doesn't know what they are.

Many legal analysts disagree.

"This all sounds like wishful thinking to me: `I don't want to do this, therefore there must be some way for me to avoid having to do it,' " said Andrew Koppelman, professor of law and political science at Northwestern University. "I have no doubt the governor wishes he had other options, but that's not a legal argument. You litigate, you lose, and at some point you have to admit that you've lost and go on with life."

Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus, said the Republican governor is playing to a national audience. Isaacson said Romney, who is thought to have higher political aspirations, is determined to prevent gay marriages on his watch. "Romney will do anything in his power or beyond to thwart the issuance of those marriage licenses," said Isaacson. "He will push the envelope administratively, perhaps by issuing an executive order to the Department of Public Health banning them from issuing marriage licenses. That would be unconstitutional. He's desperate to do anything to prove to the national right-wing audience that he would try to stop gay marriage."

Romney, who spoke to reporters following a speech on development, declined to comment on a specific idea now making the rounds on Beacon Hill, a bill that would take the state out of the marriage business by creating civil unions for heterosexual and homosexual couples alike.

Under the proposal, the state would issue licenses for civil unions, with identical rights and benefits, for both heterosexual and homosexual couples, while churches, synagogues, and other religious institutions would perform marriage ceremonies. Clergy members could officiate at the marriage of any couple they choose. That system would let religious groups that object to gay marriage refuse to perform the ceremony.

The proposal, being circulated in draft form by Representative Paul Loscocco, a Holliston Republican, closely resembles the system set up by the government of France, which has separated the civil and religious aspects of marriage while allowing same-sex couples a full array of rights and benefits. Loscocco, a harsh critic of the proposed amendment approved by the Legislature Monday, said his bill would address perceived problems with the amendment: that it creates a "separate but equal" system for same-sex couples and that it fails to address concerns of churches and synagogues that they might be forced to marry same-sex couples.

"It's absolutely radical, but it's consistent," Loscocco said. "In my view, this is something the Legislature has to weigh. There is going to be confusion and acrimony as people fight, whether they realize it or not, over a word. Words mean things, but to a certain degree, the problem here is that the word [marriage] has meaning religiously. I am confident that we in the Commonwealth can call this institution whatever we want, as long as it is clearly the legal equivalent of marriage."

Loscocco said a handful of lawmakers on both sides of the gay-marriage issue have expressed interest in his proposal.

Representative Jay Kaufman, a Lexington Democrat who supports same-sex marriage, said he might like Loscocco's bill because it gets rid of the "separate but equal" problems inherent in the proposed constitutional amendment. Representative Eugene O'Flaherty, a Chelsea Democrat who opposes gay marriage, said he is interested in protecting the freedom of religious institutions to conduct marriages as they see fit. Both lawmakers, however, said they need to see more details of Loscocco's proposal before endorsing the idea.

A lawyer for the Catholic Church and one who represents gay couples pushing for the right to marry said they have little interest in Loscocco's idea, even if lawmakers are intrigued by it. Another catch: Senate leaders, who were the driving force behind the constitutional amendment approved Monday, are skeptical, too.

"In order for the Legislature to do something, we need a dance partner," O'Flaherty said. "Institutionally, even though the idea may have more than a little merit, I don't know if there's an appetite for this right now."

Yvonne Abraham of the Globe staff contributed to this report.

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