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Speaker Salvatore F. DiMasi said the proposed amendment banning gay marriage and allowing civil unions is discriminatory.
Speaker Salvatore F. DiMasi said the proposed amendment banning gay marriage and allowing civil unions is discriminatory. (Globe Staff File Photo / George Rizer)

Passage of marriage amendment in doubt

Last of two parts

One year after same-sex marriage became legal in Massachusetts, the fate of a proposed constitutional amendment to ban gay marriage and create civil unions is in serious doubt because several lawmakers who voted for the measure are openly rethinking their support.

The erosion of support for the amendment, which won preliminary approval by four votes in March 2004, is caused by several factors, including the considerable clout of new House Speaker Salvatore F. DiMasi, a supporter of gay marriage; a net gain of four gay-marriage supporters in recent legislative elections; and increasing acceptance of gay marriage among the public.

''Are there enough people reassessing and reconsidering their position that would change the vote? My opinion: Yes," DiMasi said in an interview last week.

The amendment, coauthored by Senate President Robert E. Travaglini and Senate Republican leader Brian P. Lees, emerged as the winning compromise after a dizzying series of roll-call votes and parliamentary maneuvers that all but deadlocked the 200-member Legislature for weeks. The measure must attain at least 101 votes in the Legislature again for it to be placed on the November 2006 ballot.

At least three senators who supported the amendment -- including cosponsor Lees, Metheun Democrat Steven A. Baddour, and Gloucester Republican Bruce E. Tarr -- told the Globe in separate interviews that they are reassessing the 'yea' votes they cast last year. All three said that while they have yet to make up their minds, they have seen little negative impact from the gay marriages that have occurred since May 17, 2004.

Signs of declining support have prompted leading gay-marriage opponents to consider a new approach: a ballot initiative that would ban both gay marriage and civil unions that would appear on the 2008 ballot. Ballot initiatives, unlike the compromise amendment being considered, require the support of 51 lawmakers in two successive legislative sessions.

Many conservatives who voted for the compromise amendment last year were not strong supporters of the measure because it also created civil unions. They voted for it only in hopes of persuading the Supreme Juidicial Court to stay its ruling legalizing gay marriage, something that never occurred. As a result, many conservative backers of the amendment are likely to abandon it, said Ronald A. Crews, who is leading the fight against gay marriage on behalf of the Massachusetts Family Institute.

''We've got members of our coalition who have said outright they cannot support the amendment who did the first time," Crews conceded. ''This is a different day. When we encouraged members to vote in the heat of the Constitutional Convention, it was to prevent May 17th from happening. It did happen. So it's causing all of us to back up and say, 'Wait a minute, we're interested in what's best for the institution of marriage in the long run, even if it delays a vote.' So we are having to pause."

Crews said his organization and its allies will decide in three weeks whether to abort their support for the compromise amendment and pursue a ballot initiative that could be on state ballots in November 2008 if approved by the Legislature. Should they decide to push for a 2008 vote, Crews said, the current compromise amendment would probably go down by a wide margin.

Other developments are contributing to political troubles for the amendment.

State Attorney General Thomas F. Reilly, a Democratic gubernatorial candidate and once an outspoken opponent to the SJC's ruling, now backs same-sex marriage, as do declared candidate Deval Patrick, the former assistant US attorney general, and presumptive candidate William F. Galvin, the secretary of state.

Furthermore, state Democrats will not feel obligated this year to produce a compromise that provides political cover for home-state US Senator John F. Kerry. Some strategists last year felt the Democrats needed to go on record for a measure banning gay marriage and enacting civil unions, a position that Kerry backed as he ran for president.

This year, DiMasi said, he intends to tell his colleagues that he believes the proposed amendment banning gay marriage and allowing civil unions is discriminatory. His predecessor, Thomas M. Finneran, actively lobbied lawmakers to ban gay marriage last year.

''I might set an example if I can talk to people on the merits," said DiMasi, Democrat of Boston. ''I will probably express that opinion to as many people as possible. I'm sure people will ask me about it, legislators, and I will express those opinions because they will ask me."

DiMasi added that the results of recent fall and special legislative elections have also damaged the amendment's chances. No incumbents who supported gay marriage lost their seats, a result that DiMasi believes will free up lawmakers who personally support gay marriage but had previously feared a voter backlash.

''Other than a couple of races, I didn't see that issue as a very compelling issue as to whether or not someone was reelected," DiMasi said. ''We do make decisions up here based on both the personal feelings and political considerations . . . but I believe it's going to be less of a factor than it was the last time."

Under the procedure used for the compromise amendment, the proposal must pass by a simple majority vote in two successive joint sessions of the Legislature. After that, a majority of voters must back the measure in the subsequent election. Therefore, if lawmakers do pass the amendment sponsored by Lees and Travaglini, it would appear on the ballot in November 2006.

More than 6,000 gay and lesbian couples in Massachusetts have wed since gay marriage became legal a year ago. Public opposition to such marriages has steadily eroded to the point where a majority of Bay Staters now support the new legal status quo, polls indicate. A Boston Globe poll in March indicated that 56 percent of those surveyed supported gay marriage, 37 percent were opposed, and 7 percent were unsure.

By comparison, a Globe poll conducted in spring 2004 indicated that 40 percent of those surveyed supported gay marriage. Those who either wanted to ban gay marriage and replace it with civil unions, or who wanted neither, represented 45 percent of those queried.

Like the majority of those surveyed, Lees, the state Senate's ranking Republican, said the relative lack of apparent societal damage caused by the onset of same-sex marriage has given him pause -- even though he was a coauthor of the amendment before the Legislature.

''You've heard from many folks that this would be a huge problem for the Commonwealth, and none of those problems have arisen," Lees said.

Like Lees, Baddour said he considers his second thoughts on the amendment the appropriate reaction, since lawmakers are weighing whether to change the world's oldest living constitution. That constitution, written by John Adams in 1780, requires lawmakers to cast their vote in two successive sessions in order to ensure that lawmakers have carefully considered their vote over time, rather than casting a hasty ''yea" or ''nay" based on societal impulses of the time, said Baddour, the Democratic senator.

''It's only appropriate for everyone to rethink their position," Baddour said. ''I don't think there's anything wrong with that."

Still, following Kerry's defeat in last year's presidential election -- a contest determined at least in part by allegations that the Massachusetts Democrat was a flip-flopper -- many Beacon Hill lawmakers will be wary of changing their positions from one year to the next, DiMasi said.

''There will probably be a group of people who want to be consistent in their vote," said DiMasi, known by colleagues as an accurate vote-counter. ''Why should they change their vote now? That's a good question. Consistency is very important."

Another potential key to the upcoming vote will be the widely held sentiment that voters, not the Legislature or courts, should determine whether gay marriage is the law of the land.

Then there are conservative lawmakers, like Representative Emile J. Goguen, Democrat of Fitchburg, whose antipathy to same-sex marriage is so strong that they would be willing to create civil unions to stop them.

A key interest group that backed the amendment last year may not this time around: the Roman Catholic Church. Daniel Avila, an attorney with the Massachusetts Catholic Conference -- the lobbying arm of the state's four Roman Catholic archdioceses, said the church cannot back an amendment that would create civil unions with every right and benefit granted to heterosexual married couples. For that reason, Avila said, the church would probably support a new effort to gather the signatures for a 2008 ballot initiative that would ban both gay marriage and civil unions.

''The bishops themselves cannot accept the idea of endorsing civil unions, even though this amendment protects marriage," said Avila, whose organization played a prominent role in last year's constitutional debate on Beacon Hill, where a majority of lawmakers are Catholics.

''It's like asking voters in the past presidential election to vote for George Bush and John Kerry on the same ticket. . . . So where that leads us in the final vote, I don't know," Avila said. ''It's not a preliminary vote but a final legislative act, and if there is another amendment strategy, that bears looking into."

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