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SJC puts off a decision on gay marriage

With the nation watching for its much-anticipated ruling on gay marriage, the Supreme Judicial Court waived its own internal deadline yesterday, giving no indication when it will rule on whether gays and lesbians can legally wed in Massachusetts.

Yesterday morning, the clerk of the court notified 43 lawyers and two others who had submitted arguments in the case that the justices would miss their internal deadline of 130 days for handing down the decision, something the high court does in about 10 percent of its cases each year.

"Usually when you see something like this, it's indicative of a more complicated case or a case where there may not be a clear consensus," said Martin Healy, general counsel for the Massachusetts Bar Association. "To read beyond that, I don't think is wise."

The case of Goodridge v. Department of Public Health, filed by seven same-sex couples who want to marry, is potentially both complicated and contentious. The justices received 3,500 pages of legal briefs from lawyers and hundreds of groups on both sides of the controversial issue.

Less than three weeks ago, the US Supreme Court overturned a Texas antisodomy law, a decision that reignited the debate over same-sex marriage, with dissenting Justice Antonin Scalia predicting that the Supreme Court ruling would pave the way for gay marriage. The SJC is the first state appellate court to weigh in on the issue since the Supreme Court ruling.

The SJC has an "administrative goal" of deciding cases within 130 days of hearing oral arguments. But a few times a year, a quorum of justices votes to waive the deadline because the judges deem it "necessary to accommodate special problems in individual cases."

The court often takes more time deciding cases in which there is dissent among the justices, or in cases dealing with controversial social issues. Last year, for instance, the SJC took nearly three extra months in a case involving the state's grandparent visitation law, a controversial issue in nearly every state. In that case, a badly split court voted 4-3 to uphold grandparent visitation rights. The majority opinion, plus two dissents, stretched to 69 pages.

Boston lawyer Sander Rikleen, who has studied the SJC's promptness in handing down decisions, found that in the 1999-2000 annual session, the SJC authored 181 opinions and missed the deadline 12 times. The longest the court took that year was 204 days to decide a Norfolk zoning case, ruling more than two months past its 130-day deadline.

But data from that same year suggest that a missed deadline may not mean a long delay: The SJC ruled on one case just two days past its deadline and handed down decisions on three others three days after the deadline.

Like other legal specialists, Rikleen cautioned against reading too much into the delay, other than that the justices were still working. "If the cake isn't baked, you don't take it out," he said.

The case before the court began in 2001, when seven same-sex couples sued the state Department of Public Health after they applied for marriage licenses and were denied. They argue that the Massachusetts Constitution's guarantees of liberty and equality give them the right to wed partners of their choice.

A Suffolk Superior Court judge threw out the case before it was heard, ruling that the Legislature should decide the issue. The couples appealed to the SJC, which heard the case in early March.

The court doesn't give advance notice of its decisions. At 8 each morning, the names of the day's decisions are listed on the court's website, with the decisions following two hours later.

But as the deadline approached last week, predictions abounded as to when the justices would rule, each confounded by yesterday's announcement.

Peter Zupcofska, who helped write the Boston Bar Association's friend-of-the-court brief supporting gay marriage, said he believes that the wait will be short. He said he suspects that the SJC may be taking time to digest the recent and lengthy Supreme Court decision in the Texas sodomy case. He was hoping that would be a good sign for gay marriage supporters. "It maybe would help solidify some stronger language on behalf of the freedom-to-marry side," he said.

The attorney general's office, which represented the Department of Public Health before the SJC, refused to comment on the case or when the court might rule.

Gary Buseck, executive director of Gay & Lesbian Advocates & Defenders, which argued the case for the seven couples, swore off making predictions.

"I think anybody's tea-leaf reading is more a projection of their own thought process than any insight into what the court might be thinking," he said.

Kathleen Burge can be reached at kburge@globe.com.

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