Do All Boston Lawyers Oppose Marriage Amendment?'

Feminist President of Boston Bar Didn't Tell the Truth When Addressing the Legislature

Atty. Edward J. Pawlick
November 2002 Print Edition

Is it true that all lawyers in Boston opposed the Protection of Marriage Law last year (which was similar to the constitutional amendment now under consideration)?

If you listened to the President of the Boston Bar Association, Joan Lukey, when she addressed the legislature, you would think so.

But the decision to oppose the Act was made by a 19-member Council, not by the 9,000 members of the organization.

Atty. Lukey didn't tell the legislature that she had just written to her members that her job is "difficult when the Association is confronted with issues on which our membership cannot reach consensus."

In other words, the Boston Bar Association was very deeply divided.

Many wondered why the President of their Bar Association would want to touch an issue that is social and not legal in nature. Don't they have enough problems with the Massachusetts courts to worry about? Have they solved all of those problems?

"That situation [about a divided Bar Association] is exacerbated," she wrote to the members, "when the issues involve passionately held views on opposite sides of the proverbial fence, so that feelings run high and are susceptible of being bruised, regardless of the direction in which the Association's leadership chooses to move. Among the key functions of the President is consensus building, and, when that is not possible, achieving compromise that is as compatible as possible with the views of the membership, while recognizing that compromise is roughly analogous to a tie game in a sports context."

She continued, "In this environment, the Council, in a dignified and respectful fashion, with opposing views articulately stated, confronted the issue of whether to oppose House Bill 3375." She reports that they "never lost the tone of civility." (That was comforting to know.) They decided they would "compromise" by opposing the Bill but taking no stand on "same-sex marriage" for now.

Pres. Lukey is going to have to go to Pennsylvania and get a Philadelphia lawyer to explain to her members how that was a "compromise."

Boston Bar President Joan Lukey was wrong when she testified last year before the Legislature in 2000 that the Protection of Marriage Act would be "superfluous" and when she commented to reporter Ed Oliver afterwards that the proposed statute was "redundant" and unnecessary.

Prof. Dwight Duncan of Southern New England School of Law wonders how the Boston Bar could not know that a lawsuit was filed in April 2001 in an attempt to change the definition of marriage in Massachusetts which has existed since before the founding of the country. Up until lately, he points out, we have all just assumed, as did the founders, that the definition is "one man and one woman."

Prof. Duncan says, "We urgently need a written statute to make it clear to the courts that the people of Massachusetts still consider that to be the definition of marriage."

In her testimony, Lukey had told the Judiciary Committee that if the marriage bill were passed, it would be "superfluous." Ed Oliver asked her to explain her statement:

"The law of Massachusetts already prohibits same-sex marriage and therefore it seems to the Boston Bar Association that enacting a statute which again prohibits same-sex marriage has a stigmatizing and unnecessarily discriminatory effect on gays and lesbians. They are trying to strike down existing law which prohibits same-sex marriage. It doesn't make any sense to us that the legislature would pass another law, which would seem to have the purpose of discriminating against people and stigmatizing them when the rule which the statute addresses is already in place."

But Prof. Duncan replied that the proposed statute does not discriminate against gays. "It is about fostering families in which children can have both a mother and a father. It applies to heterosexual men who wish to have two or more wives as well as heterosexual men who wish to live with a woman without assuming the responsibilities of marriage. It is not aimed at homosexuals."

Ed Oliver asked Lukey which statute prohibits same-sex marriage:

"It's a case decision of the [Mass.] Supreme Judicial Court. We have two forms of law: statutory law and what's called common law, which is judge-decreed law. They have equal force and effect. The Supreme Judicial Court decreed at the beginning of this century and has repeatedly restated that marriage must be between a man and a woman, most recently in 1993, so it's not that long ago. So, since they've already said that is the law, it's cruel to pass a statute saying the same thing."

But Prof. Duncan points out that what one court says can quickly be changed by another court, as has happened in Vermont.

Duncan stated in his testimony to the Legislature, "[I]n Massachusetts you have to go back to an 1810 case, Inhabitants of Milford v. Inhabitants of Worcester, for a clear statement of the obvious: '[Marriage] is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife.'"

Duncan says even that definition was extraneous and superfluous to the case the court was deciding in 1810. (Lawyers use the word "dicta" to describe such unnecessary language.) Prof. Duncan says that a case in 1993, The Adoption of Tammy, did note in passing (also in dicta) that "the laws of the Commonwealth do not permit [a lesbian couple] to enter into a legally cognizable marriage."

But these old precedents about marriage in Massachusetts can easily be "swatted away by the courts as if they were a bothersome horsefly," says Prof. Duncan.

Why Does Atty. Lukey Say It Is 'Redundant?'

Ed Oliver asked the bar president if she was saying the bill is redundant.

"It is redundant and we also think it is cruel," answered Lukey.

Then why is there such fierce opposition to the bill if it is redundant? asked Oliver.

Lukey responded, "That's only one section of the bill, the first section, Section A. It is the one which purports to give the definition of marriage. That's the redundant section."

The President of the Bar went on to say that the second section would impact private employers. "The next section of the marriage bill goes on to say any relationship which isn't a legal marriage can't enjoy any of the benefits of marriage. That would appear to suggest, as my testimony just said, that if an employer decided, for example, that it wanted to grant benefits to the same-sex partner of an employee, it could no longer do that. That's discriminatory in a state that's one of the first in the country to prohibit discrimination on the basis of sexual orientation."

But that is not true, says Prof. Duncan. In the first place, relationships other than marriage are only prohibited from receiving benefits that are "exclusive" to marriage. The proposed statute does not cut off all benefits to housemates or dependents. Under it, any company could continue to give benefits to anyone it wished. The bill would have no effect upon that.

In addition, those benefits that the legislature unbundles from marriage and applies more generally, as has happened with adoption (since single people can adopt), would not be restricted to marriage.

Oliver asked Pres. Lukey if it were possible the legislature might try to change the wording of the bill by taking one section out and passing the other? She replied:

"Well, Chairman Donnelly certainly made it sound as if they might pass section 4A and not the rest of the statute. If they passed 4A, they would be basically enacting the section of the statute which is already the law of the Commonwealth. But it did sound from what he said as if they might consider doing that. I do think from the questioning that they were disturbed by Section 4B which is primarily what the Boston Bar Association comments were directed toward, since we take no position on same-sex marriage at this time.

"But we're very concerned about 4B because we think it interferes with the ability of an employer as I said, or a hospital, for example, to extend benefits that they might want to extend to same-sex partners. We don't see it as the role of the legislature to interject itself into that process."

Prof. Duncan replied that it is clear that this bill would not interject the government into that process. He also indicated that the simplest way for same-sex partners to be guaranteed hospital visitation rights is to have them appoint each other as their proxy for medical decisions as they can do now.