Last edited: December 18, 2004

Marriage Legislation Dominates Massachusetts Legislative Calendar

Pro- and anti-gay filings promise to keep advocates busy

Bay Windows, December 2, 2004

By Laura Kiritsy

GLBT advocates and allied lawmakers have filed a handful of pro-gay bills, the majority of which relate to marriage rights for same-sex couples, for consideration in the new legislative session that begins in January 2005. The deadline for filing bills for the upcoming two-year legislative session was Dec. 1.

The Massachusetts Gay and Lesbian Political Caucus (MGLPC) is sponsoring three of the bills: one to update the state’s marriage law to conform to the Supreme Judicial Court’s (SJC) Goodridge decision legalizing same-sex marriage, another to repeal the 1913 law that prevents out-of-state same-sex couples from marrying in Massachusetts and a third to repeal the state’s sodomy laws. Versions of the three bills failed to pass the previous Legislature.

State Rep. Byron Rushing, D-South End, said he filed the first marriage bill, known as “An Act to Provide Equal Access to Civil Marriage,” for both theoretical and practical reasons.

Theoretically, though the Supreme Judicial Court has already decided that same-sex couples can legally marry in Massachusetts, said Rushing, “I believe the decision should be made at the legislative level and not by amending the constitution.” Same-sex marriage supporters have argued that the marriage issue should be addressed in a manner other than by writing discrimination into the state constitution, he noted. “This is the way.”

Rushing said the passage of his proposal would also allow the Legislature to do what the SJC intended when it stayed the Goodridge decision for six months—give lawmakers the time to update the state’s marriage statutes to conform to its ruling. The laws, Rushing points out, continue to imply that marriage is between one man and one woman. “This does put our General Laws in conformity with the Goodridge decision,” he said of his bill.

The marriage bill, a version of which was introduced in the Senate by Sen. Robert Havern, D-Arlington, would amend Chapter 207 of the Massachusetts General Laws—which contain the marriage statutes—to stipulate that any two people who otherwise meet the criteria to marry in the Commonwealth may do so “regardless of gender.”

Arline Isaacson, co-chair of the MGLPC, said the bill would “show that many legislators truly believe we should have the right to marry.”

“We want to differentiate [between] legislators who oppose the anti-gay constitutional amendment because they support same-sex marriage from those who oppose the DOMA constitutional amendment simply because they don’t want to add discrimination into the constitution,” she explained, referencing the proposed constitutional ban on same-sex marriage that is currently pending in the Legislature. “Those are two very, very different perspectives; very, very different views on the matter of same-sex marriage and this legislation helps to clarify who stands where.”

Rushing is confident that his bill will pass should the proposed constitutional amendment be voted down by the Legislature, which is expected to debate that measure for a second time next year. “If we win that, then this will pass,” he said.

The growing support for same-sex marriage is evidenced in the 30 co-sponsors who have already signed on to the bill—a far cry from the 11 legislators who signed on to the bill the first time Rushing filed it back in December 2002. “I think we’ll have a few more,” Rushing predicted.

Same-sex marriage advocates have also filed “An Act Relative to Marriage,” a bill to repeal the controversial 1913 law that prevents nonresident couples from marrying in Massachusetts if their marriage would not be recognized under the laws of their home state. Because no other state recognizes same-sex marriage, the statute—which was not enforced for decades prior to the legalization of same-sex marriage in Massachusetts—effectively prevents out-of-state couples from marrying in the Bay State. Same-sex marriage advocates say the law discriminates against same-sex couples. “We are filing a repeal for the 1913 law because we believe the enforcement of it in the last six months has been predicated exclusively on anti-gay prejudice,” said Isaacson.

The 1913 law’s constitutionality is currently being challenged in court by Gay and Lesbian Advocates and Defenders (GLAD), which in June filed suit on behalf of eight out-of-state same-sex couples who wish to be married in Massachusetts.

The repeal bill has been re-filed by Rep. Robert Spellane, D-Worcester, who filed a similar proposal late in the last legislative session. “In short, any form of discrimination in our General Laws should not be tolerated and should be removed,” said Spellane. There are currently 11 legislative co-sponsors for the measure, which would repeal the two sections of the marriage law pertaining to nonresident marriages in Massachusetts.

Though the bill failed to make its way out of the House Rules Committee during the last session, Spellane is more confident that momentum is on his side this time around, given the change in House leadership—the new speaker, Rep. Sal DiMasi, is a strong gay-rights advocate, unlike his predecessor Tom Finneran—and the fact that pro-same-sex marriage legislators suffered no backlash in the recent elections. Additionally, said Spellane, the public has grown more accepting of the SJC decision in the past year. “I think it bodes well for us in this regard,” he said.

The more timely filing of the bill at least ensures it will have a public hearing, where testimony on either side of the issue can be heard, said Spellane: “At the bare minimum we can educate the public on why this section of the [marriage] statute should be stricken from the General Laws.”

The MGLPC is also continuing the effort it began in 1995 to repeal the state’s two sodomy laws, which criminalize oral and anal sex between both same- and opposite-sex couples. Under the laws, which date back to the 1600s, the crime of “the abominable and detestable crime against nature,” defined by case law as anal sex, carries a penalty of up to 20 years in prison. The law against “unnatural and lascivious acts with another person,” which previous court rulings have defined as both oral and anal sex, carries a term of up to five years in prison and a $1,000 fine.

The state Supreme Judicial Court ruled in 2002 that the sodomy laws cannot be enforced against anyone engaging in private, consensual sex. But Rep. David Linsky, D-Natick, the chief sponsor of “An Act to Repeal the Sodomy Laws,” says that antiquated laws that are no longer enforced—be they archaic sex laws or a statute against spitting on a sidewalk—should be repealed. “In general I don’t believe that statutes that are never enforced should be on the books ... because the potential exists for those statutes to be misused.”

GLBT aging issues, long a priority of many local advocates, will finally get some legislative attention in the upcoming session. State Rep. Liz Malia, D-Jamaica Plain, along with the LGBT Aging Project and Ethos, have filed “An Act Regarding Equality in the MassHealth Program,” a bill to insure that married same-sex couples would have the same access to the state’s Medicaid program as heterosexual spouses. As the Aging Project’s Lisa Krinsky explains, because MassHealth is partially funded by federal money and DOMA prohibits federal recognition of gay marriages, if a married same-sex couple apply for MassHealth benefits their application would be denied.

Under the proposed legislation, the state would provide equal access to the MassHealth program for same-sex couples by funding their spousal benefits with state dollars. “It’s important that the state be consistent and therefore extend its MassHealth coverage to same-sex couples,” said Krinsky.

Vermont dealt with the same issue after the passage of its civil union law. While there was originally concern that by recognizing civil unions for Medicaid purposes the state was jeopardizing its federal funding, the state eventually chose to provide equal spousal benefits completely with state funds. According to a fact sheet on the bill being distributed by Krinsky, the move has not resulted in the loss of federal funds to Vermont.

Aside from the pending constitutional amendment, GLBT advocates will be fighting other legislative battles.

In addition to re-filing his bill of address to remove the four SJC justices who ruled in favor of the Goodridge plaintiffs, Rep. Emile Goguen, D-Fitchburg, has filed two bills that take aim at same-sex marriage rights: “An Act to Clarify the Status of Same-Sex Marriages Performed Under Public Authority in Massachusetts Since May 17, 2004,” and “An Act to Define Marriage As the Union of One Man and One Woman.” The latter is a standard DOMA bill; the former declares that same-sex marriages performed in Massachusetts since May “are without statutory basis,” and that “no marriage performed in Massachusetts will be considered legally binding which is not established by Massachusetts statute” despite being licensed by the state Department of Public Health. Goguen was unavailable to speak with Bay Windows about his filings.

Isaacson called Goguen’s filings “nonsensical and mean-spirited pieces of legislation.

“It is unconscionable for any legislator to attempt to nullify the 4,200 same-sex marriages that have taken place this year,” said Isaacson. “It’s bad enough that our opponents are attempting to do that through the constitutional amendment. Legislation like this is the icing on the cake of anti-gay prejudice.”

The Parents Rights Coalition, a group headed by Newton activist Brian Camenker—who also heads the Article 8 Alliance, an organization working with Goguen to pass the bill of address—is re-filing its bill to require parental permission for all students enrolling in any “school sanctioned program or activity, which primarily involves human sexual education, human sexuality issues, or sexual orientation issues.”

The current law does not mention sexual orientation specifically and allows parents to opt their children out of sexuality discussions they find objectionable.

Camenker, who has long opposed the discussion of gay issues in schools, did not respond to a request to discuss his bill, known as “An Act Relative to Parental Notification and Consent.” In the past the bill has drawn opposition from advocates for gay youth, as it would force students seeking to join a school’s Gay/Straight Alliance to first obtain parental permission—a risky proposition for students who may still be struggling to come to terms with their sexual orientation.

The Massachusetts Teachers Association (MTA) has also opposed such legislation, according to spokesman Bob Duffy, who said the current law is “appropriate and educationally sound.”

Though he is clear that the MTA will take no position on the new bill until it has reviewed the language, Duffy said, “Obviously if it’s filed, we are likely to oppose the bill, like we have in the past.”

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