BOSTON (AP) – The Massachusetts high court’s initial ruling in favor of gay marriage came by the slimmest of majorities, giving lawmakers hope that a proposal for Vermont-style civil unions would persuade at least one justice to swing the balance of power and soften the court’s stand.

Instead, a follow-up opinion shows the four-member majority of the Massachusetts Supreme Judicial Court even more unequivocal and united in their stand that nothing short of marriage of same-sex couples will pass constitutional muster.

The positions held by the court majority and the three justices in the minority “seem to have hardened now rather than relaxed,” said Paul Martinek, editor of Lawyers Weekly USA.

The court’s hardening positions are borne out in the vitriolic language used in the advisory opinion issued this past week. The minority opinion contended the majority was merely parroting rhetoric from gay-rights proponents; the majority suggested the dissent was so ludicrous it wasn’t worthy of contemplation.

“There is a level of vituperation that is more like partisan politics than judicial opinion,” said John McGinnis, a professor at the Northwestern University School of Law and critic of the majority opinion.

In November, the court ruled 4-3 that same-sex couples had a right under the state constitution to the benefits of marriage, and gave the Legislature 180 days “to act as it deems appropriate.”

Lawmakers were puzzled by the court’s intent: was civil union sufficient, or were they bound to enact full-fledged marriage for same-sex couples?

The November ruling gave lawmakers 180 days to decide, leading some lawmakers to believe they were being given some flexibility by the justices, six of whom were appointed by Republican governors.

But when the state Senate asked the court for guidance, the justices stayed with the same 4-3 margin and ruled that only marriage was acceptable, that anything less would amount to discrimination. Same-sex marriages could start happening as early as mid-May, unless some unforeseen effort succeeds in delaying implementation.

“The four judges in the majority seem pretty resolute,” Martinek said. “Whatever qualms they may have expressed in November have evaporated. The 180-day stay was an expression of discomfort; it opened up a can of worms for the Legislature to think they have the power to do something they don’t have the power to do.”

While the majority opinion cast the debate in terms of equal protection under the constitution, the lead dissenter – Justice Martha Sosman – called the argument over marriage versus civil union merely “a squabble over the names to be used.”

That argument, contended the majority opinion written by Chief Justice Margaret Marshall, “so clearly misses the point that further discussion appears to be useless.”

“The separate opinion enlists Shakespeare in the cause of trying to convince us that words are unimportant,” the majority wrote in a footnote. “But whatever may pertain to two teenagers in love does not disguise the importance of the choice of words employed by the government to discriminate between two groups of persons regulated in their conduct by the government.”

The court’s ruling is based on the state constitution, and not subject to appeal to the U.S. Supreme Court.

State legislators plan to vote on efforts to place a proposed constitutional amendment on the ballot that would define marriage as a union between one man and one woman. But the earliest an amendment could end up before voters would be November 2006.

While Sosman may have been outvoted on the court, she has plenty of company in the general public, among many lawmakers and with conservative groups who characterize the court’s majority justices as unelected, rogue agents bent on imposing their radical will on a reluctant populace.

“It is supposed to be … government of the people, by the people, and for the people, not government by FOUR people,” reads a flier handed out by Your Catholic Voice, which planned a protest rally Sunday on the Boston Common.

However, several legal observers said that the majority justices had done exactly what they were appointed to do: protect the rights of the minority.

“That’s why we have a three-part government, for that balance of power and for the protection against a majority that may, in fact, be wrong,” said Shari Levitan, an attorney with Holland & Knight of Boston. “I think folks are quick to label judges as activist when judges take a stand which is contrary to all their desires.”

AP-ES-02-07-04 1423EST

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