Gay marriage
supporters argue to court
against proposed
amendment
By Denise Lavoie, AP
boston.com from the Web. May 4, 2006
BOSTON --The same court that
made Massachusetts the first state to legalize gay marriage is now mulling
whether citizens have the right to get around its ruling by amending the state
constitution to define marriage as the union of one man and one woman.
Same-sex marriage supporters are attempting to block a proposed amendment that
would ban future same-sex marriages. Supporters say the state constitution
bars any citizen-initiated amendment that seeks to reverse a judicial ruling.
The Supreme Judicial Court, with a landmark 2003 ruling, cleared the way for
same-sex marriages to begin in Massachusetts in May 2004. More than 7,000
gay couples have married since.
Attorney General Tom Reilly, who approved the question for the ballot, maintains
the proposed amendment would not reverse the court's ruling or invalidate
existing gay marriages. Instead, the question, if approved by voters,
would amend the state constitution so that no additional gay marriages could
take place.
On Thursday, justices peppered attorneys on both sides of the case with
questions during a spirited debate in which they invoked slavery and other cases
involving minority rights.
Chief Justice Margaret Marshall asked Assistant Attorney General Peter Sacks if
his same legal rationale would apply to slavery -- that if citizens wanted to
vote to allow it, could they vote reverse the court's ruling that slavery is
unconstitutional?
Sacks said a citizen initiative hypothetically could be used to legalize
slavery, but he also said that would be an unlikely scenario because it would
violate other provisions of the state constitution as well as the federal
constitution. "Obviously, the subject matter is very troubling," Sacks
said.
Sacks, however, said citizen-initiated ballot questions must be approved by two
consecutive legislative sessions. Before this question could be placed on
the 2008 ballot, supporters would need to win the votes of 50 lawmakers -- 25
percent of the Legislature -- in two consecutive sessions.
"The deliberative process protects minority rights," Sacks said.
But supporters of same-sex marriages said the ballot question is a blatant
attempt to reverse the high court's earlier ruling.
"The people shouldn't be able to directly attack an SJC decision," Gary Buseck,
legal director of Gay & Lesbian Advocates & Defenders, which filed the lawsuit,
told the court. "They shouldn't be able to have a referendum on that
decision."
The justices took the case under advisement and did not indicate when they would
rule.
After the SJC's ruling legalizing gay marriage, opponents saw putting the issue
to voters as their best shot at circumventing the court's decision.
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.
"While the Attorney General does not personally support the proposal, we are
confident that letting this question proceed was the proper legal decision,"
Reilly spokeswoman Meredith Baumann said in a statement Thursday.
The state Legislature had been expected to debate the ballot question during a
constitutional convention scheduled for May 10, but Ann Dufresne, a spokeswoman
for Senate President Robert Travaglini, said that debate would likely be
postponed until the court rules.
Former Boston Mayor Ray Flynn, one of the original signers of the petition to
place the question on the ballot, said he sees putting the question to voters as
"the compromise and the solution to a very contentious debate."
"It has always been my contention that an issue as volatile and as important as
this -- the institution of marriage -- it would be appropriate to have the issue
decided by the largest number of people," Flynn said. "And what could be
more encompassing than the ballot initiative, which is one of the most valued
political processes in our democracy?"
Editor's Note: Denise Lavoie is a Boston-based reporter
covering the courts and legal issues. She can be reached at
dlavoie(at)ap.org
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