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The ConCon game
As legislators weigh gay marriage at next week’s constitutional convention, their votes will depend on a shifting calculus of political expediency, self-interest, party loyalty — and principle

TRYING TO FORECAST what’s going to happen next week when the Massachusetts legislature resumes debate over amending the state constitution to bar same-sex couples from civil marriage is like trying to forecast next week’s wind-chill factor on Mount Washington. In other words, it’s impossible.

That said, since the constitutional convention (also known as the ConCon) adjourned at midnight on February 12, the following factors have emerged as wild cards that could determine whether or not legislators ultimately vote to ban gay and lesbian couples from marrying. As you read this, however, keep one caveat in mind: any of these elements could be made irrelevant by the shifting allegiances and strategic negotiations taking place even now.

Scott Brown’s win. The Republican state representative surprised most politicos with his win against Democrat Angus McQuilken in the special election to fill the Senate seat vacated by Cheryl Jacques when she resigned last month to head the Human Rights Campaign. Some insiders predicted that the timing of the special election (engineered to coincide with the presidential primary) would draw more Democrats to the polls and spot McQuilken anywhere from 18 to 22 points (see "Race Consciousness," News and Features, February 27). Of course, Democratic insiders claim just the opposite: they say that the timing of the election merely made it competitive and that nearly everyone with access to credible polling data thought McQuilken was going to lose in the overwhelmingly Republican district.

Regardless, political observers viewed the race as a referendum on the gay-marriage issue: Brown voted in favor of two amendments at the ConCon that would have banned gay marriage outright and against one that would have banned gay marriage but provided for civil-union benefits. McQuilken strongly favors civil-marriage rights without any compromise. That Brown has won a race nearly everyone expected him to lose is bound to be seen as strong signal that the public opposes giving marriage rights to lesbian and gay couples. Whether legislators will see it that way and vote accordingly next week remains to be seen.

The Finneran factor. Distrust of House Speaker Tom Finneran runs so deep among pro-marriage forces, some fear he will even try to use a recent federal-court ruling requiring the redrawing of 17 of Boston’s 19 House districts as a weapon. Last week, a panel of three federal judges rejected the redistricting plan that the House had devised based on the results of the 2000 Census, and ordered that the lines be redrawn. Although progressives hailed the ruling as a major victory, it gives Finneran the opportunity to punish Boston’s eight pro-civil-marriage state reps by redrawing their districts in such a way as to make them vulnerable to a challenger.

Representative Liz Malia of Jamaica Plain, whose House district was targeted by plaintiffs in the lawsuit that led to the federal decision, is sure to see her district redrawn dramatically. Other potential targets are Representatives Marie St. Fleur and Martin Walsh, both of Dorchester, and Jeffrey Sanchez of Mission Hill — each of whom voted against all three constitutional amendments proposed last month. Of course, redistricting threats aren’t going to change their votes. Malia, one of just three openly gay legislators on Beacon Hill, delivered a moving speech on the House floor last time around, during which she explained that her partner of 30 years, Rita, might lose the house they bought together should Malia die first. And St. Fleur surprised many with her heartfelt speech against discrimination.

More vulnerable to such threats may be Boston representatives such as Paul Demakis of Back Bay and Kevin Honan of Brighton, both of whom voted for a so-called compromise amendment that would have banned marriage rights for gay couples but guaranteed civil-union protections.

Still, the Speaker has other, more basic, tools of persuasion at his disposal. The Boston Globe reported Tuesday that he is suspected of funneling thousands of dollars to 10 of his minions through the Massachusetts Democratic Party. According to the Globe, Finneran gave the party $24,500 in three installments last December. Six days after the last donation, the "cash-strapped party," as the Globe put it, distributed $26,000 to 10 House Democrats who have backed Finneran on key votes. It’s worth noting that eight of those 10 voted for a surprise amendment proposed by Finneran at the ConCon on February 11.

Speaking of that surprise amendment, there is much fear that Finneran will try to dominate the debate via his considerable parliamentary skills once again. Just minutes after the ConCon opened on February 11, Finneran snookered Senate president Robert Travaglini into giving him the floor (Travaglini made the gentlemanly move of granting Finneran’s request to make an opening statement to the ConCon) and seized the moment to introduce his own amendment, which would have banned gay marriage without promising even to enact civil unions. The move angered many in the chamber — who then had to spend the next few hours debating an amendment no one had prepared for. Although Finneran now claims to support a civil-union compromise, few actually believe him. (Indeed, when State Representative Eugene O’Flaherty, of Chelsea, a Finneran lieutenant, insisted on the floor of the ConCon that Finneran would back a civil-union law, other legislators openly laughed.) Today, rumors abound that Finneran is secretly strategizing for an as-yet-unknown anti-gay amendment that he’ll try to spring on the ConCon once again.

The Big Mo is with civil unions. Both Travaglini and, apparently, Finneran have been pushing hard to build consensus for a "compromise" amendment. The measure would ban gay marriage, while creating civil unions that would provide "entirely the same benefits, protections, rights, and responsibilities that are afforded to couples married under Massachusetts law." To date, the amendment has yet to secure enough votes to win, partly because it strikes a balance between the two extremes. Those on the right haven’t embraced it because they oppose any kind of legal recognition for same-sex couples, while those on the left don’t support it because they reject the concept of separate-but-equal. Meanwhile, even Travaglini and Finneran can’t seem to agree on one fundamental point — whether the amendment would require the legislature actually to pass a statute defining civil unions that would then go to the governor for signature. Finneran says yes, Travaglini says no.

Nationally, political leaders are calling for something close to what Travaglini and Finneran are reportedly working on. Last Thursday, Democratic presidential front-runner John Kerry announced that he would like to see the legislature pass an amendment to the Massachusetts Constitution banning gay marriage while providing for civil unions. The US senator’s declaration was nothing new; he had already made plain that he opposes same-sex civil marriage but supports giving gay and lesbian couples comparable legal benefits. But the timing of his announcement and his newfound prominence as the all-but-made-official Democratic nominee to challenge President Bush in the fall could sway some of the undecideds up on the Hill. Not only do Democratic legislators on the fence now have permission from the national party’s putative leader to embrace the separate-but-equal civil-union compromise, but by voting for an amendment, they can help defuse some of the "Massachusetts liberal" rhetoric that’s already been lobbed in Kerry’s direction in time for the 2004 presidential election.

Last week, also, the president called for a federal constitutional amendment prohibiting gays from marrying. Though Bush hardly represents a moderate voice on the matter, he gave a nod toward civil unions when he said the amendment should leave it up to the states to "make their own choices in defining legal arrangements other than marriage." Which prompted Finneran to hold up his and Travaglini’s proposal as a model of Bush-approved federal-state balance.

In any event, most state legislators who support a civil-union compromise mirror the thinking of Massachusetts residents. A recent Globe poll shows that 60 percent of Bay Staters back the creation of civil unions for same-sex couples, while only 35 percent back gay marriage. Interestingly, the civil-union compromise amendment failed to win a majority vote in that same poll. According to the data, 46 percent of residents reject the proposal, while just 36 percent approve it. Perhaps it’s a harbinger of things to come for the Travaglini-Finneran measure.

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Issue Date: March 5 - 11, 2004
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