Court Says Anti-Gay Amendment Can Proceed

Massachusetts marriage referendum legally valid, but Legislature puts off decision

The Massachusetts Supreme Judicial Court ruled unanimously on July 10 that a proposed amendment to the Massachusetts Constitution that would provide that “the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman,” if passed by voters, would not barred by a state constitutional prohibition on “reversing” decisions of the courts through popular initiatives. The ruling came just two days before a state constitutional convention convened to take the first step of two required to determine whether the proposed amendment should be sent to the voters.

The earliest such a referendum could be put in front of voters is November 2008. The July 12 constitutional convention voted to put off consideration of the amendment until November 9, two days after the general election.

In November 2003, the Supreme Judicial Court ruled in the Goodridge case that the failure of Massachusetts to let same-sex couples marry violated the guarantee of equal citizenship in the state Constitution.  Since May 17, 2004, roughly 8,000 same-sex couples have married in Massachusetts.

Shortly before the marriage decision went into effect, however, the two houses of the state Legislature, meeting jointly as a constitutional convention, narrowly approved a proposed amendment to the state Constitution that would have barred same-sex marriage, replacing it with civil unions along the lines of the Vermont statute enacted in 2000. If the exact same proposed amendment had been approved when the Legislature next met in constitutional convention—the spring of 2005—it would have been placed on this year’s November ballot.

However, in the 2004 legislative elections and all the special elections held in the interim, supporters of same-sex marriage, led by MassEquality, scored impressive gains over their opponents. The proposed amendment fell well short of a majority in 2005, and died.

Angered by the failure of the Legislature to give the public an opportunity to vote on the marriage question, opponents of same-sex marriage formed to draft a proposed amendment and gather signatures to get it on the ballot. They adopted a simpler amendment, simply defining marriage as between one man and one woman, making no provision for alternative partnership rights. Many supporters of the new amendment, such as Republican Governor Mitt Romney, opposed the first effort precisely because it created civil unions, which were also unpalatable to them. They submitted the proposed amendment to Democratic Attorney General Thomas Reilly, whose approval as to formal and legal requirements was needed before signatures could be gathered.

Opponents of the amendment argued that it was intended to “reverse” the Goodridge decision in violation of a specific statement in the Constitution that public initiatives may not be used to reverse court decisions, but Reilly rejected the argument, approved the amendment, and ultimately certified that it had received enough signatures to proceed to its next stage—approval by at least a quarter, not a majority, of the delegates—50 of 200 legislators—at two successive constitutional conventions, comprising the Legislatures elected in two consecutive elections.

Reilly, who is running to succeed the lame duck Romney as governor, stated that he is personally opposed to the amendment but had not legal basis to block it.

Gay & Lesbian Advocates & Defenders, the Boston-based LGBT public interest law firm that won the Goodridge case in November 2003, filed suit challenging Reilly’s determination and seeking a judicial declaration that the proposed amendment could not be placed on the ballot. When the Supreme Judicial Court, Massachusetts’ highest, took up the case, the plaintiffs focused the full weight of their objections on the prohibition against reversing court judgments.

Writing for the court, Justice Robert J. Cordy found that the term “reversal” was used in the Constitution in its narrowest sense. A reversal of a court decision is a ruling by a higher court that the decision was incorrect as an interpretation and application of existing law. But, said Cordy, that is not what the proposed amendment does. It says nothing about whether Goodridge was a correct interpretation of the Massachusetts Constitution. Instead, it seeks to change the Constitution itself, which the people are free to do—otherwise the initiative process would be rendered meaningless.

In other words, the proposed amendment would “overrule” Goodridge, by changing the ground rules, but would not “reverse” it. Cordy looked to the history of the reversal rule’s adoption in the 1917-1918 constitutional convention, and found clear evidence that this was the intention of the drafters of the provision.

Amendment proponents were careful to state that they did not intend to “undo” any same-sex marriages already performed, simply prohibit future ones. Thus, they could not be accused of trying to reverse Goodridge itself.

All seven judges agreed with this interpretation, but Justice John M. Greaney, joined by Justice Roderick L. Ireland, issued a concurring opinion, warning that if the amendment were adopted, it would introduce a serious inconsistency into the state Constitution. While it would for the first time define marriage, it would not amend the constitutional provisions upon which the court had based Goodridge.

“The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form,” Greaney wrote. Such discrimination, he pointed out, is forbidden by the Constitution and inconsistent with its basic human rights guarantees.

In a footnote, he added that the proposed amendment could violate the federal Constitution as well, in light of Romer v. Evans, the 1996 U.S. Supreme Court decision which found that a Colorado amendment was so sweeping in its bar on gay people winning nondiscrimination protection under state law that the only plausible explanation for it was animus or bias, an impermissible motivation given the federal equal protection clause. Whether the Supreme Court would find an exclusion from marriage to raise the same constitutional problem is, at present, an open question.

The concurring opinion stands as an open invitation to Gay & Lesbian Advocates & Defenders to bring a new lawsuit if the amendment actually goes to the voters and is approved.

MassEquality, which had collected 150,000 postcard signatures urging the Legislature to reject the new amendment, voiced relief that its consideration had been put off until after the election. Legislative contests since 2004 have uniformly improved the gay marriage position, so even though the current make-up would still meet in November, a strengthened MassEquality might be able to muster more votes to defeat the effort.

A spokeswoman for the Massachusetts Family Association, which is behind the amendment effort, charged, “This move shows the flagrant disregard for the will of the people” by the legislative leadership.