The Massachusetts Legislature Finally Allows an Anti-Same-Sex-Marriage Constitutional Amendment to Be Voted Upon:
Why Opting to Fulfill Their Legal Duty Was the Right Thing to Do

By EDWARD LAZARUS

Thursday, Jan. 04, 2007

As a commentator, it is easy to fall into the habit of singling out the actions of government officials for criticism. But let's start the New Year on a high note, by praising a group of lawmakers rather than condemning them.

This week, the elected legislature of Massachusetts (its "General Court") did the right thing. After weeks of defying the clear command of the state Constitution, the Democratically-controlled body reversed course, and decided to obey the law -- even though this meant doing something most of the lawmakers found personally repugnant, and even though neither a court nor the Governor had any power to coerce their compliance with the law.

Now, I know it sounds kind of silly praising lawmakers just for following the law. That's the job of all public officials after all. But this isn't always as easy as it sounds. When deeply held moral convictions pull one way, and an unenforceable law pulls another, there is a temptation to go with moral conviction over the law. Thus, the liberal legislators of Massachusetts deserve some praise for resisting this temptation.

The occasion for this tug-of-war between moral values and legal duty was a proposed ballot initiative that would amend the Massachusetts Constitution to ban same-sex marriage. Democrats in the legislature had been skirting the law to prevent the proposed amendment from ever being put to a popular vote. This week, however, on the very last possible day, the Democrats saw the error of their ways, and quit their obstructionism, while simultaneously managing to make a moral statement against the proposal. Better late than never!

The Background for the Legislators' Choice

The background for these events starts in 2003, when the Supreme Judicial Court of Massachusetts decided (by a 4-3 vote) that the equal protection clause of the Massachusetts Constitution prohibited the state from denying gay couples the right to marry. Since that ruling, more than 8,000 gay and lesbian couples have gone through state-sanctioned marriage ceremonies.

The Supreme Judicial Court's decision left opponents of gay marriage with only one avenue for changing the law - constitutional amendment. And they pursued this option aggressively.

Since 1918, the Massachusetts Constitution has provided for amendment by ballot initiative. The process is straightforward: To get an initiative on the ballot, proponents have to obtain a designated number of signatures from qualified voters - specifically, more than 3% of the number of voters in the immediately-preceding gubernatorial election.

Once these signatures are obtained and certified, the proposed initiative moves to the legislature or "General Court." Under the state Constitution, this body must hold a vote on the merits of the proposed initiative. If more than one-quarter of the legislators (a total of about 50 members) votes in favor, then the initiative is placed on the ballot for a popular vote.

Following this procedure, opponents of gay marriage drafted a constitutional amendment to limit marriage to unions between a man and a woman, and then collected the requisite number of signatures (in this case, more than 130,000) to move the proposal to the legislature.

The Democrat-controlled legislature, however, initially refused to bring the ballot measure to a vote on the merits. The Democrats realized they did not have the three-quarters supermajority necessary to kill the initiative. They were also very worried that, if put to a popular vote, the amendment would pass. So instead of voting on the merits of the initiative (and having it go on the ballot), they took a vote not to have a vote.

The effect of this parliamentary maneuver was to stymie the initiative. Under the state Constitution, the proposed amendment can't go on the ballot without the approval of one-quarter of the legislature. And without a vote on the merits, this prerequisite could not be met.

The Supreme Judicial Court's Unanimous Opinion: The Attempt to Block the Measure Violated the State Constitution

Governor Mitt Romney, and the sponsors of the amendment to ban gay marriage, cried foul and went to court seeking a judicial order requiring the legislature to follow the constitutional requirement of a vote on the merits.

And last week the Supreme Judicial Court - the same court that had provided a right of gay marriage in the first place - issued its ruling.

In a unanimous opinion, the Justices excoriated the legislators for disobeying the clear command of the state Constitution -- which, they affirmed, unequivocally requires that a vote be taken on all ballot initiatives that have received the requisite number of supporting signatures. The main purpose of the constitutional provision creating the initiative procedure, the Justices observed, is to provide an avenue for the people themselves to move forward on policy initiatives, without the possibility of being thwarted by a simple majority vote of the legislature.

In light of the language and purpose of the constitutionally-authorized initiative procedure, the Justices bluntly admonished the legislators that, if they should adjourn without taking a vote on the merits, they would be in violation of the oath they each had taken to uphold the state Constitution. After all, refusing to take the required vote (and thus forestalling a popular vote) would accomplish the very evil that the initiative process was created nearly 90 years ago to cure.

All that said, the Justices also ruled that the Supreme Judicial Court itself had no power to issue an order forcing the legislature to take a vote. Neither any statute nor the Constitution authorized such an intrusive remedy. And basic notions of the separation of powers prohibited a court, on its own authority, to order a vote. Accordingly, the Justices could do little more than exhort the legislators to look to their consciences, and remind the legislators that they themselves might be held accountable at election time for flouting the law.

Democrats Go to the Brink, but Finally Comply - Providing a Civics Lesson

In the immediate aftermath of the ruling, it looked as though the liberals in the legislature might simply ignore the Court's admonition, and continue to defy the law. But on January 2, the very last day of the legislative session (and the last day before the proposed amendment would, in effect, expire), they changed their minds and brought the initiative to a vote.

A vast majority of the legislators voted against the proposed amendment. But enough voted for the initiative to qualify it for a popular vote.

And thus a mini-crisis in government turned into a civics lesson.

If the Democrats had not reversed themselves, they would have scored the short-term victory of defeating a noxious initiative (and with little risk, given the unlikelihood that this issue would really cost many of them reelection). But this victory would have been dearly purchased. It would have entailed the legislature arrogating to itself the power to subvert a fundamental check on its own authority provided by a co-equal branch of state government. Surely, one key component of the rule of law is the rejection of a pure calculus of the ends justifying the means. Yet this is what it would have been.

Instead, the Democrats, albeit belatedly, upheld the rule of law and also, perhaps unintentionally, underscored the role courts can play in shaming elected officials into legal compliance, even while acting with consummate restraint.

Time will tell whether the people of Massachusetts will enshrine the ban on gay marriage ban into their Constitution. Already, they should be asking themselves if their relatively casual process for amending the state's basic charter makes any sense at all. Constitutional amendments, a higher form of lawmaking, should be made through more demanding and formal processes - like the one included in the U.S. Constitution.

To be sure, if the initiative carries, that will be a sad day. But lasting equality cannot be won by subverting the rules by which we govern. It will - and must - be gained another way.


A former federal prosecutor, Edward Lazarus is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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