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News :: Gender
The Massachusetts Constitution Has Not Been Amended to Ban Gay Marriage--Yet
by Jeffrey Langstraat
13 Feb 2004
Modified: 02:21:29 PM
The Constitutional Convention is now in recess until Thursday, March 11. Following three days of wrangling over multiple amendments and fillibustering by opponents of any amendment (the supporters of gay marriage), no amendment has been voted out of the ConCon to amend the Constitution--yet. On the first day of the COnCon, the crowds on the street were huge--competing sides shouting, holding signs, arguing past each other, and the like. By the third day, the people who were there--about 500 at its peak--were overwhelmingly people who supported the rights of same-sex couples to marry. I don't think I saw a group of same-sex marriage opponents larger than 5 people all day Friday. The fight isn't over. The ConCon will resume on March 11. My experience in legislative work, indeed in any form of queer work, says we're going to lose. I still think that some kind of amendment restricting marriage to only opposite-sex couples will pass. I'm also fairly confident, though, that when (if) this amendment goes to the citizens of MA, they will reject it. The polling data I've seen so far has shown support for same-sex marriage itself as slightly ahead of not allowing it. Opposition to amending the Constitution is at around 60%.
Following are two e-mails from a friend who participated in the protests in support of gay marriage at the State House over the last few days. -- Matthew Williams
e-mail 1 (Wednesday, February 11, 2004):
The Constitution remains unamended-For now
I just got back from the State House. What a day! The General Court has recessed the Constitutional Convention for the evening and will go back into session at noon tomorrow.
A quick thing. So far, as I'll explain below, two proposed amendments have been defeated. But, this issue is far from settled. Although most legislators have probably made up their minds. (I say probably, because some of the weird finagling today cause a couple of people I thought would be stalwarts to change certain votes.) More action may still be able to sway legislators. So, if people feel like it's something they want to do, a call to your legislators might be a good thing. Here's another thing, though. Some folks have talked about voting against every amendment. I'd alter that a little. From my perspective, the language in the Barrios Amendment, would be more than acceptable (again, explanation below). You can get through to your legislators' offices through the Sate House Switchboard: 617-722-2000. If you're not sure who you're legislators are, you can find out at this web site:
Thanks in advance.
Now, on to what happened today. I arrived at the State House at around 12:45 or so. The crowds on the street were huge--competing sides shouting, holding signs, arguing past each other, and the like. I walked through and stood off to the side for a while, just to watch. It was quite uncomfortable, as the area where I was standing tended to be populated by folks opposed to same-sex marriage, including a few who were expressing downright hate (like one guy who had a sign that read "If dykes like women so much why do they try to look like men" and kept yelling "fag" at people.) Made may way inside the building (after standing in line and going through security) at about 2:00.
The calendar listed an amendment by Representative Travis of Rehobeth as the main order of business. This is the primary one (still alive) that would insert basic "Defense of Marriage Act" language into the Constitution. It could have the effect of banning civil unions and removing any kind of domestic partner benefits from State employee contracts--but that's not completely clear.
Now comes the fun aspect of legislative procedure. Senator Jarret Barrios (D-Cambridge) offered an amendment that would remove the language from the Travis amendment and replace it with "Marriage is the union of two consenting adults" (paraphrasing--don't have the language in front of me). While Senate Minority leader Lees was discussing the issue, House Speaker Finneran (the man never tires of being a complete ass) offered an amendment (that should have been ruled out of order--even according to Lees) that would replace the language in the Barrios Amendment with "Marriage is the union between a man and women. At some point in the future, the General Court may consider whether and how to provide civil union benefits to same-sex couples." (Again a paraphrase, but the issue of "may" did figure into debate.)
Several legislators got really fussy at this point. Finneran came in for a lot of criticism because he has refused to allow any kind of domestic partner benefits bills to be dealt with in the House. Members of both the House and Senate slammed him pretty good, though he did have a few defenders (Rep. Tolman and some crazy woman who represents Milford--her speech on the floor was the some of the most bizarre stream of consciousness crap I've ever heard). Some of the debate centered on the fact that he has refused to allow such legislation in the past--how could House members trust him to bring civil unions up in the future based on his past action? I won't rehash all of the debate here (I couldn't remember it all, anyway). The issue finally came to a vote--the amendment to replace the language in the Barrios amendment with the Finneran's language lost by a vote of 100-98. Big bullet dodged!
Next, Senate Minority Leader Brian Lees introduced and amendment (co-sponsored by himself and Senate President Robert Traviglini (I know I spelled that wrong)) to replace the Barrios language with the DOMA (Defense of Marriage Act) language plus statutory language that would enshrine civil unions in the Constitution as a separate category. This is the "compromise" that was all over the Boston newspapers today. One aspect of it would take same-sex couples who were married after May 17 of this year (the SJC's deadline) and demote those marriages to civil unions upon passage of the Amendment by the people of Massachusetts. This is the point where things got just plain weird.
Some supporters of the Travis and Finneran language (flat out bans with no allowance even for civil unions) were actually arguing that including the civil union language would be the imposition of a separate-but-equal system!!! Other supporters argued that the "compromise" bill was a poison pill. It conflates two separate things they argue (probably correctly). It asks the voters to first define marraige as only between a man and a woman, and at the same time asks them to provide civil unions for same-sex couples. Part of their argument is that people who only want to vote on marriage (and would probably be against any benefits for same-sex couples--which seemed to be the sentiment of almost all the opponents of same-sex marriage in attendance) would be forced to vote on providing same-sex couples with benefits. Because of this, it would be likely the amendment would fail in the popular vote. Thus, we'd be left with civil marriage for same sex couples anyway. There's an elegance to this argument; it's probably right. The "Traditional Marriage" advocates are as vehemently opposed to civil unions as they are civil same-sex marriage. Accepting an amendment that enshrines such rights in the constitution is unacceptable to them, and they may be likely to vote against it when (if) it goes to the ballot. Conversely, advocates of same-sex marriages are likely to view this enshrinement as place a separate but equal institution in the constitution--equally unacceptable.
But, back to the debates themselves. Allies of us gay folks started to do some odd things. The Rep from Springfield (can't remember his name) discussed his experience of living in the Jim Crow South and experiences of separate but equal. He discussed marching with Dr. King. He then said that although he hated the language, he was going to vote for the "compromise" amendment because he thought it was the best we could do.
When it came to the vote, the oddness continued. The "compromise" amendment won a majority of votes from Senators. Even our supporters like Diane Wilkerson and (gasp) Jarrett Barrios(!!!!) voted for the substitute amendment--to replace the Barrios langague with the Travaglini/Lees language. Among House members, the substitution was fairly strongly defeated. Our supporters like Marie St. Fleur and my own rep voted against the substitution. In the final tally, the "compromise" was defeated 104-96 (I think that was the final margin).
The con-con was recessed until noon Thursday.
So, here's where we stand right now. The Travis amendment is still the primary amendment on the calendar. The Barrios amendment (replacing Travis) is the amendment under consideration when the con-con resumes.
Who the hell knows what's going to happen now. My experience in legislative work, indeed in any form of queer work, says we're going to lose. I still think that some kind of amendment restricting marriage to only opposite-sex couples will pass. I just have absolutely no idea what it will look like.
I'm also fairly confident, though, that when (if) this amendment goes to the citizens of MA, they will reject it. The polling data I've seen so far has shown support for same-sex marriage itself as slightly ahead of not allowing it. Opposition to amending the Constitution is at around 60%. I think that in two years, these will grow in our favor--especially when people have the experience of living in a state where same-sex couples get married without the sky collapsing on us. It will take ongoing organizing and work, though. This is definitely about more than just these few days at the State House.
A personal note: Thanks to those of you I've spoken with who've taken action and/or expressed support. I'm actually surprised by my own emotional intensity on this issue. I've always had a somewhat ambivalent intellectual take on marriage as an institution. What I'm also dealing with, though, are my own hopes (which I also sometimes think are delusions). I hold out hope that I may find someone someday. If we choose to get married, if we need the material/legal benefits that accompany it, I'd like to have those options. It's also bringing up major issues around feeling attacked. Standing at the State House today with people who literally hate me was an experience I usually try to avoid. It was quite an intense emotional experience. The support we've (me and queer communities) have received from y'all have really meant a lot. I probably can't express how much, but it really does help to alleviate some of the pain that comes from dealing with these other folks. I'm very grateful to you all.
I'll be back at the State House tomorrow and will provide further updates.
e-mail 2 (Friday, February 13, 2004):
The Constitution is Safe--for at least a month
I just got home from the State House and wanted to drop a note about today's goings on. It's going to be brief, as I spent 13 hours chanting, singing and watching the General Court. I'm sleepy.
The biggest news is that the ConCon is now in recess until Thursday, March 11. No amendment has been voted out of the ConCon to amend the Constitution--yet. When the General Court went into recess at midnight, the amendment being debated was yet another "compromise"--this one offered by the leadership of both houses--that would enshrine civil marriage as exclusively heterosexual and create civil unions. This is the same effect as the earlier Travaglini amendment, but with different language.
The night ended with opponents of any amendment running out the clock. I dunno if any of you watch West Wing, but it was incredibly reminiscent of the episode where a Senator from Minnesota is fillibustering a bill. At the end, another Senator (who is on his side) comes in to ask him if he'll yield, and then carries on the fillibuster for him. That's exactly what happened in the last hour and a half tonight. Finneran got outmaneuvered!!!! It was really beautiful, and quite entertaining, to watch.
For the last hour and a half (with a fifteen minute recess--my god, there were a ton of recesses today) opponents of the amendment got up to speak, beginning with Brian Joyce. Speakers would interrupt, asking the person at the podium to yield, and the only speakers that would be yielded to were those among a group that seemed to be organized to carry this strategy out. They would then take the podium, speak for several minutes, and then yield to another ally. If other people would ask the speaker to yield, s/he simply refused. The floor was never "open" for any kind of amendment or other procedural method of breaking the string.
Believe me, supporters of an amendment tried to break that string. During Joyce's time, someone tried to "call the question" (force a vote for folks who aren't familiar with parliamentary language). Traviglini refused to let them. There were a few other challenges to his ruling, all of which he shot down. (It really seemed like he was in on the group fillibuster, trying to run out the clock on an amendment that carried his name as a sponsor!) At one point, a member supporting the amendment got up and said to the speaker (I'm paraphrasing), "Since 10:30 you've only had opponents of the amendment speaking. Are you ever going to let supporters speak?" Travaglini responded, "I don't think that's true. Plus, I don't know who supports or opposes when the ask to get on the list. Also, the speakers who have taken the floor have done so because other speakers have yielded to them." the questioner asked, "Can you tell us who is on the list for upcoming debate?" Travaglini: "No."
At times, this maneuvering became almost farcical. When the representative from Framingham asked Alice Wolf from Cambridge to yield, her right to ask was challenged by another person because she wasn't sitting in the her seat. A Senator raised a point of order by asking where his assigned seat would be since there were only a bunch of chairs moved into the chamber for Senators to use--they had no desks. The House members sat at their usual desks. Traviglini responded, "There are no assigned seats." Like I said, things were entertaining.
I'll fill in more of the stuff from actual debate tomorrow. Right now, though, a few thoughts on the activity outside the House Chamber.
The crowds were much different today. First, there were not nearly as many people. Second, the people who were there were overwhelmingly people who supported the rights of same-sex couples to marry. I don't think I saw a group of same-sex marriage opponents larger than 5 people all day. There are a couple of reasons for this, I think. First, I don't think marriage opponents anticipated the ConCon going longer than a day. They hadn't organized in preparation for this. Second, a lot of the people they had at the State House yesterday were actually from out of state. They didn't stay here. Third, I think that, although they feel strongly about the issue, it doesn't have the same kind of resonance for them that it does for us gay folks. We're out there fighting for our rights, to defend something the Supreme Judicial Court says we already have. That's motivating a hell of a lot of people. The crowds actually grew as the day went on--once people got off work, they came to the State House. At it's peak, I'd say we probably had around 500 people (rough guess) there today.
There were two major areas of action. First, right outside the House Chamber. Whenever there was a recess, this area would fill up. People were singing (please, god, I don't ever want to hear "America the Beautiful" again!) and chanting whenever members of the General Court were present. I took part in a good amount of it myself.
While debate was occurring, there was generally a core group of around 50 that stayed outside the chamber, singing and chanting. Most of the other people retired to the Great Hall to watch on television. The gallery was also full. Whenever there was break in the action--out of the Great Hall and to the hall outside the Chamber we went.
Ok, I think that's enough for now. Sleep time! (I haven't had nearly enough this week).
thank you so much for your support on this issue. Two things in closing:
1) The fight isn't over. The ConCon will resume on March 11. It probably isn't a bad idea to contact your legislators again before them in order to reiterate your position on this issue.
2) Thank your legislators! Many of them will receive a lot of crap for this. They also need to know that people are grateful for and happy about what they did. It will make it easier for them to support us in the future.
This work is in the public domain