Thursday, December 01, 2005

Picking Petition Nits

Two aspects of the current Massachusetts anti-SSM ballot initiative petitions seem sure:
We confess that from the beginning, we found this petition drive illegal. However, Massachusetts Attorney General Tom Reilly disagreed and had the power.

The current Bay Windows does a nice job laying out the issues on the commonwealth constitution's Article 48 or more formally XLVIII. It includes:
Excluded Matters. - No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative petition; but if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect.
The key there is an initiative that relates " the reversal of a judicial decision..."

That seems straightforward enough. This initiative certainly wants to reverse the Supreme Judicial Court's SSM decision. However, Reilly interpreted it to only law going forward, not to existing decisions. (Hmmm, do you think his political ambitions to become governor have anything to do with his view?)

BW found a constitutional-law expert who predicts some word twisting, mind bending debate before the SJC on this. Northeastern University School of Law Associate Professor Margaret Burnham said, ""I think this turns entirely on a fairly complicated legislative history having to do with what the Massachusetts legislature intended in adopting Article 48 and how they intended the language barring initiatives [relating to] the reverse of a judicial decision to be applied."

She favors GLAD's view, as does the founder and general counsel of the National Voting Rights Institute, John Bonifaz. As he put it, "If people want to try to argue that this initiative is something different than reversing the Goodridge decision, I think that they'll have a tough time making that [argument] with a straight face."

However, you can be sure that if GLAD gets to the SJC on this, anti-SSM folk will try that argument. Then, if they lose, we can expect another assault from a different flank by the same forces.

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