A lawyer for Gay & Lesbian Advocates & Defenders argued before the Supreme Judicial Court that Attorney General Thomas F. Reilly, in approving the ballot question, flouted a provision in the state constitution that blocks citizen-generated questions seeking the ''reversal of a judicial decision." The SJC legalized gay marriage in Massachusetts in November 2003.
The provision clearly meant that ''the people shouldn't be able to directly attack an SJC decision," said Gary D. Buseck, legal director at GLAD. ''They shouldn't be able to have a referendum on that decision." The provision was passed at the Massachusetts Constitutional Convention of 1917-1918, which authorized ballot questions.
But Peter Sacks, the lawyer for Reilly's office who wrote the September decision certifying the ballot question, countered that the provision dealt with attempts during the Progressive Era a century ago to overturn unpopular court rulings by going directly to voters. That is different, he said, from the proposed gay marriage ban, which would change the constitution itself by defining marriage as strictly the union of a man and a woman. The drafters at the Constitutional Convention were ''very clear that the people should be the masters of their own constitution," Sacks said.
I am against the amendment to ban gay marriage and will vote against the measure if it comes to a ballot. For what it's worth, my position on this issue is radically libertarian. I believe "marriage" is a religious institution and the commonwealth should stop issuing marriage licenses altogether. Couples of any stripe should be granted a sort of civil union and recognized by the government for legal purposes, but I don't think it is any of the state's business who gets married and who doesn't.
But despite that, I think the measure should go on the ballot if it's approved by the legislature as a constitutional amendment. I think the constitutional provision GLAD mentions is good one for government as it upholds the authority of the SJC to interpret the law and the constitution. But I agree with the AG's position that the provision does not apply here.
The difference in this case is that the constitution also allows for a process to amend it. If the constitution cannot be amended in response to an SJC interpretation of it, it essentially becomes unchangeable, and the judiciary will have almost unlimited power.
The SJC should allow the amendment to be brought to the voters in 2008, and the voters should reject it.
Tags: Massachusetts Gay Marriage Constitution 2008 Tom Reilly
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