A Mockery of the Rules in Massachusetts

Admittedly, I am not in favor of same-sex marriage; in fact I think the idea is ludicrous, but Massachusetts citizens should think long and hard, whatever their position on this issue happens to be, about what their politicians are preparing to do to the rule of law in their state.

A mockery of the rules
By Jeff Jacoby | July 9, 2006
The Boston Globe

WHEN THE Massachusetts Legislature meets in joint session as a constitutional convention this week, the most notable item on its agenda will be a proposed amendment to ban same-sex marriage. A record-breaking 170,000 registered voters have signed petitions to put such an amendment on the state ballot. But the Massachusetts Constitution mandates a detour: The measure must first win the support of at least 50 lawmakers in two consecutive legislative terms. Only then can it be submitted to the people. If the amendment gets past every hurdle, it will reach the ballot in November 2008.

It is a deliberately long and cumbersome process, meant to keep the Constitution from being altered recklessly, and to provide time for an amendment's pros and cons to be fully aired. To draft an amendment that passes legal muster, to collect tens of thousands of signatures, to haul reams of petitions to and from hundreds of town halls in every corner of the state, to raise funds, to debate and defend the proposal -- it takes an incredible amount of work and dedication to get an amendment to the ballot. Citizens who accomplish it demonstrate an admirable faith in the democratic system. That doesn't entitle them to win, of course. But they are entitled to be treated fairly. If the petitioners have to play by the rules, the Legislature does, too.

And what the rules say about the marriage amendment is that the Legislature must put it to a vote. The Massachusetts Constitution could not be clearer on the point. Article 48, which establishes the right of initiative and referendum, specifies that when amendments proposed by initiative petition come before the Legislature, a roll call is mandatory. They ``shall be voted upon" as written, the Constitution directs (unless amended by a three-fourths supermajority). What's more, the Legislature is permitted to take action on them ``only by call of the yeas and nays." (Italics added)

Lawmakers are not given a choice in the matter. The Constitution requires them to vote. If it didn't, initiatives opposed by the legislative leadership could be aborted by simply refusing to bring them up for a vote. Instead of operating as a check and balance on the Legislature, Article 48 would then be a toothless sham.
But for weeks now, same-sex marriage advocates have been telegraphing their intention to kill the marriage amendment through just such an unconstitutional ploy. ``Every possible option is on the table," says the head of MassEquality, a powerful coalition opposed to the amendment. Among the tactics being discussed: adjourning the joint session before the amendment is brought up, or arranging for enough legislators to stay away in order to prevent a quorum.

Some members brag openly about their plans to flout the Constitution. ``Legislators won't be hiding in Oklahoma," House majority leader John Rogers told Bay Windows, a leading gay newspaper. ``In fact, they'll be standing right in front of the State House steps, probably singing freedom songs and hugging one another in plain sight, not cowering." And by the way, Rogers added -- whether from ignorance or fraudulence isn't clear -- ``that is perfectly acceptable as constitutional behavior."

Those intoxicated with their own moral superiority often find it easy to believe that it is ``perfectly acceptable" to make a mockery of the rules that ensure fairness for those they look down on. Homosexual marriage is widely supported by Massachusetts elites; few of them are likely to lose much sleep if the proposed amendment is derailed by an illegal parliamentary maneuver. In a newspaper ad appearing this week, 165 Massachusetts business executives and civic leaders endorse same-sex marriage and urge the Legislature to reject any amendment ``that would take away rights." But the ad says nothing about the right of 170,000 Massachusets citizens to have their petition put to a vote on Beacon Hill.

``I think we have had enough of this debate," says Democratic gubernatorial candidate Deval Patrick, siding with those who favor procedural tricks to cheat the amendment's supporters out of a vote. ``The basic question here is whether people come before their government as equals." His position, in other words, is that scores of thousands of petitioners must be treated as second-class citizens in order to ensure that people aren't treated as second-class citizens.

Same-sex marriage supporters dominate the Massachusetts power structure; if they are hell-bent on denying voters a chance to be heard on the issue, they can probably get away with it. The result, however, will not be a fairer, more liberal Massachusetts. It will be one that is even more unfair and illiberal -- a place where citizens who play by the rules get treated with contempt, and where democracy is more dysfunctional than ever. The Boston Globe

Today the Massachusetts legislature went ahead with its mockery of the rules by deciding not to vote on the amendment. MAYBE they will take up the question next fall. This is not the first time that this body has trampled on the rights of its citizens on this matter.