They'd better hurry!
Mass. court says gay marriage question can move forward
By Associated Press
Monday, July 10, 2006 - Updated: 09:29 PM EST
BOSTON - The same court that made Massachusetts the first state to legalize same-sex marriage ruled Monday that a proposed constitutional amendment that could ban future gay marriages can move forward.
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The ruling came in a lawsuit brought by gay-rights supporters who argued that Attorney General Tom Reilly was wrong to certify the question because the state constitution bars any citizen-initiated amendment that seeks to reverse a judicial ruling.
The Supreme Judicial Court rejected that argument, paving the way for the state Legislature to take up the question during a constitutional convention slated for Wednesday. The question would have to be approved by two consecutive legislative sessions before it could be placed on the 2008 ballot. Supporters need to win the votes of 50 lawmakers - 25 percent of the Legislature - in both sessions.
The SJC, in a landmark 2003 ruling, cleared the way for same-sex marriages to begin in Massachusetts in May 2004. More than 8,000 gay couples have married since.
The Legislature has been grappling with same-sex marriage ever since, balancing the views of people who believe marriage should be limited to the traditional, one-man, one-woman definition, those who believe gays and lesbians should be allowed to have civil unions but not marriages, and those who believe all couples should be allowed to marry regardless of sexual orientation.
In its ruling Monday, the high court said the proposed constitutional amendment - which would restrict marriage to between one man and one woman - is not a “reversal” of its earlier ruling legalizing gay marriage, because it would change the constitution to ban future marriages and would leave intact the marriages of same-sex couples who had already wed.
“The underlying substantive law is simply changed to reflect the present intentions of the people, and that new law will be applied thereafter in any subsequent case or cases,” the court said in its ruling.
But Justice John M. Greaney, in a concurring opinion, warned that approving an amendment banning gay marriage would be clearly discriminatory because it would remove the rights of same-sex couples to receive the legal, social and financial benefits of marriage.
“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.
Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, which filed the lawsuit against the ballot question, said the fight is not over.
“So now, obviously, the focus is going to turn to the Legislature, which has a chance on Wednesday during the constitutional convention to do the right thing and defeat this amendment,” she said.
Supporters of the constitutional amendment predicted they will have enough votes to win the first round of approval from the Legislature.
“We are comfortably in excess of 50 votes,” said Kris Mineau, president of the Massachusetts Family Institute.
Reilly, who certified the question, said he was pleased that the court agreed with his decision but now said he hoped the Legislature would reject the amendment.
“I did my job, the court did its job, now it’s up to the Legislature to do their job,” Reilly said.
Reilly, a Democratic candidate for governor, initially opposed gay marriage, but later became a supporter, saying he has seen that the same-sex unions that have taken place since May 2004 haven’t hurt Massachusetts.
Greaney, while agreeing that the ballot question can move forward procedurally, noted that if the constitutional amendment is approved, the issue of same-sex marriage could end up before the SJC again based on a claim that banning gay marriage is discriminatory.
“If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable,” Greaney wrote.
Supporters of gay marriage used Greaney’s words to step up the pressure on state lawmakers.
Marc Solomon, campaign director at MassEquality, a coalition of gay-marriage rights advocates, said the Legislature has a “solemn duty” to reject the amendment.
“It is wrong and it is un-Democratic to put fundamental rights up for a referendum,” Solomon said.
In 2002, opponents collected signatures for a similar amendment, but lawmakers voted to adjourn that year’s constitutional convention rather than vote on the question.
In 2004, after the SJC legalized gay marriage, the Legislature gave initial approval to an amendment banning gay marriage but legalizing Vermont-style civil unions. They reversed themselves the following year, rejecting the proposed amendment on a second, final vote.
Forty-five states have specifically barred same-sex marriage through statutes or constitutional amendments. Massachusetts is the only state that allows gay marriage, although Vermont and Connecticut allow same-sex civil unions that confer the same legal rights as heterosexual married couples.
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