By Robert H. Quinn

Among the earliest principles learned by any lawyer is that the big bench has the last word - the last word that counts, certainly. This is so even when that last word is by an eyelash thin majority of four to three. Thus, I am in no way disposed to dispute what has now been declared constitutional law in the Commonwealth of Massachusetts, namely that something like marriage and all that it legally connotes be applied to commitments made by homosexuals to one another.

However, I do feel impelled to rebut my esteemed colleague, Jim Shannon, and his remarks in an op-ed piece written recently in the other paper published in Dorchester. James is a former attorney general of Massachusetts, as am I . The burden of his remarks is that "gay marriage" is now the law and the legislature can do nothing about it. I say, not so, and our legislature, the oft termed "great and general court," can and should act to clarify the opinion and its effect on citizens of the Commonwealth. That is what the Supreme Judicial Court's 180 day stay was all about. Constitutional amendment is another issue altogether.

Consider the court's opinion in a single sentence: Two people of the same sex are entitled to marriage and its legal benefits in the same way as are two people of opposite sex. However, when one consults a dictionary of the English language for what marriage defines, one immediately and unfailingly reads it to be a union of husband and wife between a man and a woman. This is the reading from the Oxford English Dictionary (OED), from Webster, from Funk and Wagnall's, from American Heritage - and from Black's Law Dictionary (BLD). The opinion of the court immediately legalizes a contradiction in terms, unless the legislature uses the 180 days offered to tidy the language of its intent. It awakens the old Dickensian maxim "the law is a ass, a idjit." It shakes the conviction of every man and woman who believe that they were uniquely fitted to plight a troth called marriage. For them is evoked the Gilbert and Sullivan warning that "things are seldom what they seem. Skim milk masquerades as cream."

The court itself has recognized the sacred tradition of centuries if not eons given by practically every religion and culture to what is termed by some of these religions as the "sacrament of marriage." Truly the decision has made a sow's ear out of a silk purse in the minds of many.

Here is where the legislature is suited to fashion a remedy. After all, etymology was not declared unconstitutional. The distinguished members of House and Senate represent the majority who are the married and the minority who have not the benefits of the married. The dissenting opinion of Cordy, J., - only a whisker away from being the majority opinion, mind you - presented in excellent details the skills, nature and practical experience inherent in a body elected by the people. This elected body might deem that its electors would better understand and thus be able to obey the newest constitutional interpretation if it gave apt language to the qualifications of the participants in the newly prescribed union. Ready questions they and they alone can resolve for more than a particular or seven particular cases are: What to call this union if the word marriage is not apt. Should they call it "civil marriage"? BLD defines a civil marriage as one witnessed by a civil official - constrasting from a religious minister. This wold give a new meaning to the phrase and the religious ceremony would also be civilly recognized. Is this a homosexual union, presuming that the court would limit its expansion of the marriage principle to unrelated same sex couples and no other? The legislature might deem it appropriate that citizens like the elderly or incapacitated who provide for one another all the aid and comfort that the majority opinion extolled so lyrically should be entitled to a legal recognition. If so then, perhaps prohibitions to marriage of incestuous nature as the statute presently contemplates would need to be redefined or constricted. No one contests the government's right to prohibit incest under the old dispensation, but what about now?

How about my two Irish uncles, or aunts? Do not they, for one another, fulfill "yearnings for security, safe haven and connection that express our common humanity", as Shannon quotes from the opinion of Marshall, C.J.?

This provokes another question for legislative determination. The same newspapers that headlined our subject court decision were giving about four times the coverage to the world wide menace of AIDS. My knowledge of that scourge is that it is significantly spread among homosexuals. Should there be a law requiring a medical certificate relating to HIV or AIDS similar to what now exists for syphilis? The latter has become much less threatening since the perfection of penicillin, but the former still rages.

The foregoing are only a few instances that come to mind and call for legislative action. I am sure there are more. I do not even touch on economic matters, which will affect the public budget. In the process of raising these points hard words and hard hypotheses have been raised. This is not in diminution of peoples rights. Heterosexuals and homosexuals, straights and gays, are not different on a constitutional basis and this opinion has given 180 days for the statutes to match the constitution where it counts. This does not make them the same in every respect. They are different by definition, different by what all persons understand about them.

It strikes me as inept by the way, that both the majority opinion and Jim Shannon distinguish "gays and lesbians." I thought both male and female to be categorized "gay".

Here is where the etymology comes in. Refer to the OED. I fear if we are not honest in our language and straightforward in our talk, always with respect for one another and the way one another live within the law, the court's opinion will be of little effect in human dealings. The "full acceptance, tolerance and respect" of Judge Greaney's opinion, for which he and Jim Shannon yearn, will not be achieved by dodging the truth or coloring it with misleading language. One can sneer the word marriage as easily as the word homosexual or gay, or lesbian. Being forthright will bring acceptance, tolerance and respect. "Homosexual" has a clear and unequivocal meaning, as does marriage, apart from this decision. It is the kind of word legislation strives to select, but maybe it is not the apt word.

I suggest all who discuss the issues herein brought forth will benefit from a sense of humor, not laughing at one side or another, but chuckling about the predicament which a four to three court decision has asked society to resolve. I conclude with a final retort to my brother in public service. It was a favorite saying of Speaker John F. Thompson of Massachusetts, the self-styled "Delightful Rogue" of the 50's and 60's: "You kid your friends and I'll kid mine, but let's not kid each other."

The author is a former Massachusetts attorney general.

Robert H. Quinn