Contempt in Massachusetts
Suddenly the Supreme Judicial Court can't tell the legislature what to do.
Sunday, December 31, 2006 12:01 a.m. EST
Nearly three years ago, the Supreme Judicial Court of Massachusetts read between the lines of the state constitution to discover a right to same-sex marriage previously undetected across the decades. The court then gave the legislature six months to rewrite state law to accommodate its diktat.
On Wednesday, however, the same court suddenly rediscovered the humility so lacking in its previous foray into the marriage debate. Before the court was a case brought by the governor together with citizens who had presented an initiative to amend the state constitution and so define marriage as a pact between a man and a woman. The petitioners had gathered more than 150,000 signatures. According to the state constitution, the legislature must now vote twice on the measure in successive legislative sessions before the amendment can be put on the ballot for a vote by the electorate.
The constitution only requires that 25% of both houses of the legislature vote to put the measure on the ballot, a bar set deliberately low to ensure that the people would have their say in all but the most extreme cases. But the legislature has so far refused to vote on the measure at all. In November, its members recessed until next Tuesday, the last day of the current legislative session, and to all appearances the politicians intend to adjourn the session without voting on the measure at all--thus letting it die.
Departing Governor Mitt Romney has threatened to withhold approval of legislators' raises for next year unless they vote on the initiative, but this has purely symbolic value. Thanks to a voter-passed constitutional amendment from 1998, legislators are guaranteed raises every two years. Yet this is that same constitutional-amendment procedure that is now being flouted by legislators who lack the votes to defeat the measure on a straight vote.
The petitioners sued the legislature for abrogating its constitutional duty, and the state Supreme Judicial Court took the case. In its ruling last week, it agreed that the legislature's duty to vote on the measure was "unambiguous." But it claimed to be powerless to compel a vote. So the Supreme Judicial Court of Massachusetts, whose own arrogation of power created this mess, has suddenly discovered the limits of its power to clean it up.
All in all, this is quite the political spectacle. First judges usurp the power of the legislature to dictate their own social policy. Then the legislature uses a procedural ruse to deny voters a say on the gay-marriage issue. And these are some of the same people who say Iraqis aren't ready for democracy.
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