MB Civic

By Scot Lehigh  |  July 11, 2006  |  The Boston Globe

IT WAS A decision that should underscore an important point about process.

Yesterday, the Massachusetts Supreme Judicial Court ruled that a proposed constitutional amendment to ban gay marriage can move forward.

Although the plaintiffs had argued that Attorney General Thomas Reilly erred in certifying the amendment because it would reverse a judicial decision, the court rejected that argument.

“In sum, the plain meaning of the words `reversal of a judicial decision’ does not include the concept of `overruling’ the prospective or precedential effect of a decision by an amendment to the Constitution or by the enactment of a new statute,” legalesed Justice Robert Cordy.

Or, as Cordy put it when he lapsed back into English a moment later: “There was no error in the Attorney General’s certification of the petition.”

None of the seven justices dissented, though in a cri de coeur of a concurring opinion, Justices John Greaney and Roderick Ireland suggested that the proposed amendment might somehow be subject to a future legal challenge as incompatible with the rest of the constitution.

Reilly was roundly castigated last September when he certified the amendment, just as he has been for helping enforce a 1913 law that prevents out-of-state couples from marrying in Massachusetts if they couldn’t marry in their own state.

But in both cases, the same SJC that issued the landmark ruling establishing gay marriage has essentially said the AG was on solid legal ground in taking the action he did.

In light of those rulings, there are really only two possible conclusions here.

One is that the SJC is guilty of the same callous disregard for gays that Reilly is sometimes accused of.

The other is that the attorney general actually made very defensible legal calls on these matters.

The answer should be obvious. And that’s why yesterday’s SJC decision should also highlight a crucial but oft-lost distinction: Upholding the established constitutional process is very different from supporting the possible outcomes of that process.

Reilly would no doubt be more popular with liberals if he had rejected the proposed amendment and then had his ruling reversed by the SJC. But that would neither have changed the eventual result nor rendered him a particularly responsible AG.

Which brings us to Wednesday, when a joint session of the Legislature will begin to consider proposed constitutional amendments, including this one. The vote count is uncertain, but the measure may well have the 50 legislative supporters it needs to move forward. However, it’s clear that an absolute majority of the Legislature opposes it, which means they could defeat it with procedural tactics like delay or adjournment.

Gay marriage opponents insist legislators have an obligation to move the measure along so the voters can eventually decide. “Let the people vote” has become one of their favorite mantras.

That argument is simply silly. The state constitution establishes a clear gate keeping function for the Legislature.

If opponents can deny the amendment the 50 votes it needs both in this legislative session and the next, they would deal it a completely legitimate defeat. There is no obligation to let the voters decide.

Should they fail and the amendment make it to the ballot, I believe voters will recognize the unfairness of stripping gays of equal marriage rights and vote it down.

And what of using parliamentary tactics to doom it?

The Legislature has certainly done that sort of thing before. In 1990, William Bulger, the Senate president at the time, employed an array of procedural moves to defeat a proposed constitutional amendment to guarantee abortion rights. (Having covered several of those sessions, I don’t remember many prominent social conservatives proclaiming that the people should decide that issue.)

A term-limits amendment was defeated in similar ways in 1992, while the Legislature voted to adjourn in 2002 to kill an anti- gay-marriage amendment then before them.

The SJC has ruled several times that there is no judicial remedy for those tactics.

Rather, all that can be done is for the governor to call lawmakers back into joint session in an attempt to pressure them to vote.

Still, the best and most appropriate course for dealing with this amendment is to defeat it in a way that respects the intent of the constitutional process — a way that gay marriage supporters can later defend as a completely honorable, legitimate, and definitive victory for their cause.