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Massachusetts court: Marriage amendment can go on ’08 ballot if legislature passes it

BOSTON (BP)–Massachusetts’ highest court unanimously ruled July 10 that a proposed constitutional marriage amendment can appear on the ballot if it passes the legislature — giving a boost to amendment supporters just two days prior to a scheduled constitutional convention.

The 7-0 ruling is a loss for homosexual activists, who had argued that the Massachusetts Constitution prevents constitutional amendments from reversing rulings by the state high court. In 2003 the court, known as the Supreme Judicial Court, issued its landmark ruling legalizing “gay marriage,” and conservatives immediately set out to overturn the decision by passing a constitutional amendment. Massachusetts remains the only state to recognize “gay marriage.”

Conservative groups gathered some 124,000 valid signatures supporting an amendment, which is roughly twice the number required under state law. Now, the amendment must pass a constitutional convention in two consecutive sessions if it is to appear on the 2008 ballot. It needs support by only 25 percent of legislators during each convention to pass. Legislators are scheduled to convene July 12 at 1 p.m. EDT for the first convention.

“Voters should have a voice when it comes to protecting the true definition of marriage. Today’s ruling is a victory for them,” Jordan Lorence, senior counsel with the Alliance Defense Fund, said in a statement. Lorence defended the amendment during oral arguments May 4. “The highest court in the commonwealth of Massachusetts has ruled according to the law and rejected an extreme legal argument pushed by activists.”

The same group that successfully sued to legalize “gay marriage” — Gay & Lesbian Advocates & Defenders (GLAD) — is the one that brought the lawsuit against the proposed amendment. They filed suit after Massachusetts Attorney General Tom Reilly, a Democrat, certified the proposed marriage amendment last September, thus allowing conservative groups to begin collecting signatures.

GLAD argued that an amendment added to the Massachusetts Constitution in 1917-18 should prevent the proposed marriage amendment from going forward. That 1917-18 amendment, known as Article 48, says, in part, that “an initiative petition” cannot lead to the “reversal of a judicial decision.”

But Justice Robert J. Cordy, writing for the court, said the history of that 1917-18 amendment does not support the arguments made by GLAD.

“Neither the plain meaning of the words ‘reversal of a judicial decision’ nor their intended meaning as understood in the context of the debates of the Constitutional Convention of 1917-1918, from which they emerged, supports the broad interpretation of the exclusion pressed by the plaintiff,” Cordy wrote.

The 1917-18 amendment, Cordy said, was adopted to prevent voters from reinstating a law identical to one struck down as unconstitutional by the high court. That, though, is not the case with the proposed marriage amendment, he said.

“In sum, the plain meaning of the words ‘reversal of a judicial decision’ does not include the concept of ‘overruling’ the prospective or precedential effect of a decision by an amendment to the Constitution or by the enactment of a new statute,” Cordy wrote. “… There was no error in the Attorney General’s certification of the petition.”

Although all seven justices agreed with the conclusion, two of them — Justices John M. Greaney and Roderick L. Ireland — used a concurring opinion to blast the proposed marriage amendment.

“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.

He further asserted that the proposed amendment “purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by Art. 1 of the Massachusetts Declaration of Rights.”

“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.

Interestingly, two justices who signed onto the majority opinion in 2003 legalizing “gay marriage” did not join Greaney’s concurring opinion. That ’03 ruling, known as the Goodridge decision, was handed down by the narrowest of margins, 4-3. Since then, no other state has followed, and many of them have gone in the opposite direction by banning “gay marriage.” When the court handed down its decision in ’03, only four states had passed marriage amendments. Now, 20 have done so, and as many as eight could be voting on them in November. The 20 amendments have passed with an average of 71 percent of the vote.

Lorence, of the Alliance Defense Fund, said the court’s ruling was on target.

“The provision in Article 48 was designed to prevent people from abusing the initiative process,” he said. “In other words, citizens cannot use the initiative process to convert the voters into a one-time super-appellate court and overturn a state supreme court decision they don’t like. However, that is different from what the citizens are doing here. The court ruled today that the people can change the underlying provision of the constitution used by a court to render a controversial decision, such as Goodridge. The people can pass an initiative amending their state constitution to define marriage as a union of one man and one woman. The courts would use that amendment to decide any future cases involving the definition of marriage.”

The proposed amendment would ban future “gay marriages” but not those that already have taken place. Amendment supporters feared a more strongly worded amendment would not survive a legal challenge and also would face an uphill climb in the left-leaning legislature. Supporters are optimistic they have the votes to pass the proposed amendment, although opponents are holding out hope they can use procedural tactics to prevent a vote from taking place.
For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage

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