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.”
[Home] [News] [Massachusetts]
