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Senate eyes civil union bill for SJC

Would ask justices for 'clarification'

The Massachusetts Senate, hoping to find some middle ground in the divisive debate on same-sex marriage, is expected today to send a civil union bill to the state Supreme Judicial Court and ask if the legislation conforms with the court's gay marriage decision.


With Senate President Robert E. Travaglini spearheading the move, the Joint Committee on the Judiciary is scheduled to produce a sweeping civil unions bill that the Senate leadership is convinced provides all the protections, obligations, and benefits of civil marriage that the court says the law must grant gay couples.

But the bill would not describe the unions as "marriage" -- a key sticking point with gay marriage advocates who say civil unions fall short of offering the full legal benefits enjoyed by heterosexual couples.

"This is probably the most significant decision rendered by the Supreme Judicial Court in 50 years," Travaglini said yesterday in an interview. "And there is a significant difference of opinions among legal experts. We need clarification." The Senate's steps would be the first official action taken on Beacon Hill to deal with the court's ground-breaking decision on Nov. 18. Travaglini said he feels it is imperative to get the SJC's clarification in order to avoid an ugly and emotional showdown over the hot-button issue of legalizing gay marriage.

"It will be a sigh of relief to people in this building" if the court goes along with the Senate's request, said Travaglini, an East Boston Democrat. Noting that lawmakers are worried over how the issue will play out during next year's legislative elections, he added: "What we do legislatively is going to define the debate as we proceed on this issue."

House lawmakers are planning a similar approach as early as next week. Lawmakers are hoping to get a decision from the court before Feb. 11, when the House and Senate, meeting together as a 200-member constitutional convention, will take up an agenda that includes a constitutional amendment that limits marriage to heterosexuals and bans civil unions.

Travaglini said that if the court finds the Senate bill meets its criteria, he is confident that the Senate would approve the civil unions bill. Passage in the more conservative House is less certain, however.

The Senate's civil union bill would provide same-sex couples with the right to health insurance of employees' partners; worker compensation benefits for partners; joint state income tax filing; inheritance rights; and rights to hospital visitations. The bill also would prohibit discrimination against same-sex couples joined in a civil union. Many of the same laws that govern marriage would apply to civil unions, such as barring marriage between relatives or minors, providing similar procedures for applying for licenses, and applying the same probate and divorce laws.

However, a civil unions law would have no bearing on how Massachusetts citizens in civil unions are regarded when they visit other states.

Nor would a civil union law guarantee the hundreds of provisions granted to married couples under federal law, such as inheritance rights for 401(k) and pension programs.

In last month's ruling, the state's high 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 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

Travaglini feels the court decision does not mandate that the state provide marriage licenses to gay couples.

The Senate leader -- along with Governor Mitt Romney and Attorney General Thomas F. Reilly -- believes some form of a civil union bill, much like the legislation Vermont approved in 2000, would satisfy the majority opinion.

Others, including Laurence Tribe, a Harvard Law School professor and constitutional specialist, and former governor William. F. Weld, say the justices were explicitly clear that same-sex couples must have access to the same marriage system as heterosexuals.

Travaglini, who, as a Boston city councilor in the mid-1980s backed a plan to confer domestic partner benefits on city employees, said he strongly backs civil unions, but is not comfortable with the idea of providing marriage status to gay couples.

"The marriage piece is difficult to get to," he said, noting his own upbringing where marriage was looked upon as a "sacred" institution. "But that doesn't mean we should deny people the protections and benefits of marriage."

Gay activists appear to be split over the Senate's move to seek the advisory opinion.

"We're torn about this," said Arline Isaacson, co-chairwoman of the Massachusetts Gay and Lesbian Political Caucus. "We think it is unnecessary because the court has been very clear. But we realize it might be unavoidable. We are not seeking it."

Isaacson said her group respects Travaglini's position and does not believe he is trying to undermine the SJC opinion. "We know where he is coming from. We know he is not trying to hurt us," she said.

Meanwhile, those seeking to invalidate the court's decision by amending the constitution so that it would ban civil unions and define marriage as a union solely between a man and woman say they oppose any effort to seek further comment from the SJC.

Ronald A. Crews, president of the Massachusetts Family Institute, which is leading the fight against gay marriage, said his organization and others joined in opposition to the SJC's ruling are also opposed to extending civil union rights to same-sex couples.

"We would oppose the creation of civil unions, yes," Crews said. "And my understanding is that the proponents of so-called homosexual marriage would also oppose it. That's one place we agree."

His group gathered Tuesday at a Beacon Hill church with several other organizations from across the state and nation to plot a legal strategy.

Also in the group was Rehoboth Democrat Philip Travis, the state representative sponsoring a proposed constitutional amendment that would define marriage as the union of one man and one woman.

Polls, including one taken for the Globe and WBZ-TV after the court decision, show a majority backed the court's 4 to 3 decision. A University of Massachusetts poll taken this week reaffirmed those findings, with 59 percent of the 405 registered voters surveyed saying they agreed with the court's ruling, while 37 percent disagreed with it.

By a 51 percent to 41 percent margin, the respondents said they think gay marriages should be legalized. But they seemed split over a constitutional amendment banning same-sex marriages, with 48 percent opposed, 46 percent in favor. The poll has a margin of error of plus or minus 5 percentage points.

Travaglini has spent the last several days seeking a consensus among senators over whether to ask the SJC for an advisory opinion.

Because the Senate by its rules can only meet in informal sessions between now and early January, any member can halt action on a certain matter by voicing an objection. He said he is confident that no member will block his move.

Raphael Lewis of the Globe staff contributed to this report.

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