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AG suggests bill: same-sex benefits without marriage

Attorney General Thomas F. Reilly yesterday said he believes the Supreme Judicial Court's decision on gay marriage does not require the state to issue traditional marriage licenses to gay couples, and suggested the Legislature should test the ruling with a bill that offers same-sex couples full protections and benefits without allowing them to marry.

In his first comments on the historic opinion, Reilly said the ruling was vague on whether Governor Mitt Romney and lawmakers can propose an alternative to civil marriage. He suggested the Legislature and the governor approve a measure and then seek the court's feedback before the justice's 180-day stay on the judgment expires in May.

"Reading that opinion several times, I see there is considerable ambiguity," Reilly said in an interview with the Globe. "I can't say with any certainty what the court intends nor can anyone else, other than providing for basic fairness."

Reilly does not see any language in the opinion that requires the state to issue traditional marriage licenses. "I don't believe it does . . . I don't read the opinion that way," he said.

Reilly is the latest high-powered voice on Beacon Hill to suggest that policy makers look for alternatives to gay marriage, despite the landmark ruling that many constitutional scholars say is airtight. Romney and some legislative leaders have suggested the Legislature could put in place a civil union type of system and see if the court would accept it.

But some, such as Harvard Law professor Laurence H. Tribe, a nationally recognized constitutional scholar, say the SJC has clearly declared that same-sex couples must, under the state's constitution and its equal protection provisions, be provided the rights to marry.

The gay leaders who brought the suit against the state cite the court's statements that the constitution "forbids the creation of second-class citizens" as a sign that anything short of full-fledged marriage would not meet the court's ruling.

In Tuesday's ruling, the court said 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." It stayed the order for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

Yesterday, Reilly said he sees wiggle room in the 4-to-3 decision.

"I think the key provisions of the opinion really focus on providing people benefits and protections and obligations, and there are different ways of accomplishing that," Reilly said, declining to elaborate on how a law would have to be shaped to conform to the court's ruling. "That is the work of the Legislature.

"What could happen next is that the Legislature [seeks] an advisory opinion of the court, saying `this reflects our best work, raises the issues raised in your opinion, and advise us further,' " Reilly said.

Reilly criticized the justices as overstepping their bounds in trying to shape social policy. "I don't believe the court should be making profound social changes as the majority opinion does," he said. "This is a matter for the Legislature. It is right where it should be.

"I see this as a great opportunity to treat people fairly," Reilly said. But he declined to offer a description or label, such as civil unions, for what he was proposing. "I am not hung up on the term," he said. "I am more focused on the fundamental fairness of the treatment of people."

Reilly also said he would prefer the legislators and SJC come to an agreement in order to avoid a divisive battle over a proposed state constitutional amendment that would ban same-sex marriages. The earliest that could be placed before voters is November 2006 -- when Reilly, who is quietly exploring the option of running for governor, could be the Democratic nominee opposing Romney.

But a statute -- whether it be civil unions, or codifying gay marriage -- put into law with the SJC's blessing could also be subject to an initiative petition drive by opponents seeking to repeal the measure. That strategy would put the issue before voters as soon as November 2004.

State Representative Philip Travis of Rehoboth, who disagrees with the court's ruling, sees no way to avoid gay marriages in Massachusetts without amending the state's constitution, regardless of what Romney and Reilly are suggesting. For that reason, Travis is working to assemble a majority of the state's 200 lawmakers to back his proposed constitutional amendment that would define marriage as a heterosexual union.

"If they want to pursue that and hope it would satisfy the SJC's decision, fine, but they [the judges] went beyond that," Travis said. "They closed the door on that discussion. It just seems to me that the governor's idea does not have legal legs."

Travis's amendment is scheduled to be voted on by the Legislature on Feb. 11. If a majority approves the measure, another full session of the Legislature would have to approve it again in 2005. For the amendment to be fully approved, a majority of state voters would have to back it in the November 2006 general elections.

Travis blamed the Legislature for forcing the court to act, saying Beacon Hill lawmakers made it clear through their inaction on the issue that it was up to the judicial branch to determine the legality of gay marriage.

"The supreme court saw we did not act in the convention, there was no forward motion," Travis said, referring to lawmakers' decision to avoid taking up an amendment that would define marriage as a heterosexual union. "When we said, `Let's wait for the decision,' the decision came out in days."

Representative Robert S. Hargraves, Republican of Groton, who cosponsored Travis's proposed amendment, said, "The horse is out of the barn."

"It's happened, and same-sex marriage, civil unions, whatever you want to call it, they're synonymous," Hargraves said.

Romney, who supports a constitutional amendment banning same-sex marriages, was not available for comment yesterday. But Lieutenant Governor Kerry Healey said the administration will soon offer a legislative proposal to extend to gay couples many of the benefits that married heterosexual couples now are granted by state law.

"I believe that our general counsel is consulting with various folks throughout the Commonwealth and elsewhere and we're going to be coming forward with our proposal and hope that we have support for that in the House and the Senate," Healey said.

This week, Romney said he would support extending to same-sex couples hospital visitation rights, health care benefits, and the right to pass property to children. Democratic legislators who support civil unions have not elaborated on what benefits they would support.

Top Romney aides downplayed Healey's comments and said no final decisions can be made until the governor has determined what avenues the court's decision afford him and the Legislature.

Eric Fehrnstrom, Romney's director of communications, said the governor does not plan to seek an advisory opinion from the SJC, which was an option floated by Senate President Robert Travaglini Wednesday. He would not elaborate why Romney would not pursue the advisory opinion.

The State House was mostly quiet yesterday, in marked contrast to the 48 frenzied hours on Beacon Hill following the ruling.

Many lawmakers stayed home yesterday or made the rounds in their districts, while Romney and his staff held more internal briefings to digest the court's ruling and plot a strategy.

At the Supreme Judicial Court, the seven judges and their staffs continued to receive "a steady stream" of calls, e-mails, and letters, spokeswoman Joan Kenney said. But the judges do not plan to conduct any interviews or make any attempt to further clarify their ruling, Kenney said.

Ross Ozer and his partner, Scott Gortikov Ross Ozer (left) and his partner, Scott Gortikov, took their 18-month-old son, Sam Ozer-Gortikov, to a celebration of the court ruling at the Old South Meeting House. Gortikov proposed marriage to Ozer after hearing of the decision. (Globe Staff Photo / Matthew J. Lee)
Text of the decision
Gay population
The 2000 Census estimated there were about 19,000 gay couples in Mass., and about 659,000 nationwide, or less than 1 percent of households. Provincetown is the community in Mass. with the highest rate of gay partners, about 15 percent of households.
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