The Massachusetts Legislature Tuesday, sitting in a joint Constitutional Convention, gave the first of two required approvals for a state ballot referendum aimed at overturning same-sex marriages.
By: PAUL SCHINDLER | In a sharp and stunning reversal of fortune for marriage equality advocates, the lame duck session of the Massachusetts Legislature Tuesday, sitting in a joint Constitutional Convention, gave the first of two required approvals for a state ballot referendum aimed at overturning the historic 2003 Goodridge decision of the Supreme Judicial Court.
In the 200-member joint session, the referendum-which would ask voters whether to change the state Constitution to bar any future marriages by same-sex couples, but not overturn those already in place-was approved by 62 and opposed by 134. Because the referendum was initiated by citizen petition, it needs the support of only 25 percent in separate votes in two successive sessions of the Legislature in order to be put on the ballot.
After advancing the referendum, the legislative session adjourned and a new Legislature, reflecting the results of the November elections, will be gaveled to order later this week. Should the new session at some point as yet unscheduled also approve the referendum by a vote of 25 percent or more, Massachusetts voters would settle the future of gay marriage there in November 2008.
As recently as November, marriage equality advocates were confident that the Legislature, guided by leaders who oppose the referendum, would adjourn on Tuesday by a simply majority vote without formally considering the referendum question. Had that happened, the issue would have died.
But what they did not anticipate was the efficacy of gay marriage opponents, chief among them Governor Mitt Romney-who leaves office this week to mount a social conservative bid for the Republican presidential nomination-in bringing the matter before the state Supreme Judicial Court in an effort to have the state's highest court order a vote by the Legislature (see sidebar by Arthur S. Leonard). Though it ruled unanimously that it had no power to order the vote, the Court also stated unequivocally that lawmakers have a “constitutional duty” to give the issue an up or down vote.
Suddenly, the legislative majority to simply adjourn, which remained firm the last time the Constitutional Convention sat in session on November 9, eroded, and the 25 percent faction in the Legislature held sway.
“The court decision played a significant role,” Marc Solomon, campaign director of MassEquality, an umbrella organization of dozens of groups statewide working to defend the 2003 marriage ruling, told Gay City News in a telephone interview January 3. “The Supreme Judicial Court essentially told the legislators that they would be neglecting their oath of office by not voting. The Court could have written a simple two-sentence ruling denying the plaintiffs, but they didn't and it was a real whammy last Wednesday when the decision came down. It hit people pretty hard and some of our close allies told us they could not vote to adjourn.”
“Absolutely,” was the response offered by Arlene Isaacson, co-chairwoman of the Massachusetts Gay and Lesbian Political Caucus, when asked by telephone if the Court's ruling was the key to this week's outcome.
“We were pretty sure going into January 2 that we were going to win procedurally because two-thirds supports us, but we needed three-quarters to win on the substance of the issue,” she said. “We were fine until last week when our Court ruled that our Legislature had to vote on substance.”
So, for the second time since the 2003 marriage decision, the Legislature has advanced a constitutional amendment to overturn the ruling. In a frenzy brought on by the prospect of gay marriage, legislators in March 2004-even before nuptials began-voted 105 to 92 in favor of an amendment that would have overturned the ruling but replaced marriage equality with civil unions protected in the state Constitution. Because that initiative originated in the Legislature and not from citizens, it needed a second approval by a majority of the Constitutional Convention after the 2004 elections.
MassEquality, the Gay and Lesbian Political Caucus, and others mobilized impressively, defending every pro-marriage seat in the Legislature and netting a two-seat gain. Special elections held subsequently resulted in the pick-up of four more seats, and the handwriting was on the wall-at least for the bulk of legislators. When the amendment came up for a second vote in September 2005, it was defeated in a rout-157 to 39.
In the meanwhile, Romney decided that he could not support civil unions in any event and threw his weight behind a citizen drive mounted by the Massachusetts Family Institute that had significant national right-wing support. In a bitter petition effort that several times led to street scuffles, the anti-gay forces collected 170,000 signatures, exceeding the requirements to put a referendum before the Legislature. The new amendment drive would do away with gay marriage, and offer no compensating benefits in its place.
Just as the right organized, supporters of marriage equality have continued their field organizing on the ground.
According to both Solomon and Isaacson, factoring in the effects of the November elections, the new Legislature will have an additional seven marriage equality votes-which means that the vote for an amendment would presumably fall to at most 55. That figure, however, is still five more than needed to approve the referendum on its second and final consideration.
The next hurdle facing supporters of gay marriage in Massachusetts, then, will be either to whittle away those remaining votes or to prevail in blocking a second straight up or down vote in the new Legislature. The politics of the situation are complicated and unpredictable. Deval L. Patrick, the Democrat who takes office as governor this week, is a strong gay marriage supporter and Isaacson described sitting with him Tuesday as he worked the phones to twist the arms of legislators. Despite the high court ruling, the governor-elect urged lawmakers to vote to close up shop if that's what it took to block the initiative.
“I favor ending this petition initiative promptly,” the Worcester Telegram and Gazette quoted him as saying. “If adjournment can accomplish that, so be it. If the Constitutional Convention chooses to vote on the merits, I want to be utterly clear that I believe a vote to advance this question to the 2008 ballot is irresponsible and wrong.”
Yet, despite his easy 20-point victory in November, the new governor will be unlikely to win the day purely on partisan appeal. The outgoing Massachusetts Legislature had a walloping 170 Democrats out of 200, yet 41 of them, including Senate President Robert E. Travaglini, of Boston, voted to advance the anti-gay referendum. The new governor, however, does have the support of the House speaker, Salvatore F. DiMasi, also of Boston. Clearly, those will be the two Democrats marriage advocates will work with most closely in the months to come.
Still, despite Travaglini's long-stated view that the voters should get to decide the question, Solomon does not see gay marriage as a burning issue for the Senate president.
“We need to work with him and we can work with him,” Solomon said of Travaglini, as he emphasized, “We need to do a very focused effort on winning legislators over.”
Over as Isaacson put it, “We gotta keep on keeping on.”
Gay marriage advocates must be heartened by the trend line in public opinion polls, which since 2004 have shown a consistent growth in the number of Bay State residents who support the 2003 ruling and increasingly want the controversy to go away. The Legislature's action Tuesday was condemned in editorials by the Boston Globe and the Springfield Republican, though it won praise in the Boston Herald and the Worcester Telegram and Gazette.
For Isaacson, the greatest concern is that Tuesday's victory by anti-gay forces will whet their appetite and “turbo-charge” their fundraising.
“They will have tasted blood, and like any good vampire they will want more,” she said.
Solomon noted that the battle to overturn gay marriage in Massachusetts has attracted right-wing dollars nationwide, but is supported at home by the implacable opposition of the state's Roman Catholic bishops to gay and lesbian-headed families.
Both MassEquality and the Massachusetts Gay and Lesbian Political Caucus say that the effort to fend off the referendum will be expensive, perhaps costing, in Solomon's estimate, a couple of million dollars. And that's before a potential vote by the Legislature to put the matter on the 2008 ballot. Money raised and spent now, Solomon said, “is a good investment because if it goes to the ballot it will cost a lot more.”
For more information on the battle to preserve gay marriage in Massachusetts, visit