GLAD and Tommy Dancing Today

Let the judicial activism recommence!

Today the Supreme Judicial Court hears the arguments on the suit to drown the anti-same-sex-marriage amendment process in its own swamp. The AP article includes the background, as does our rant at the time. You can find the filings and pretty much what today's hearing will hear here.

The kernel is that our attorney general, Tom the Mortician Reilly let the petition advance the amendment process in what sure looks like a violation of the Massachusetts constitution. The aim of halting SSM here is clearly to try to overturn a judicial decision, which is specifically forbidden.

Tentative Tommy, according to the AP, "counters that the proposed amendment would not reverse the court's ruling or invalidate gay marriages that have already been performed under the ruling. Instead, the question, if approved by voters, would amend the state constitution so that no additional gay marriages could take place."

Right.

Representing goodness and light, Gay & Lesbian Advocates & Defenders has a different view. As their legal director, Gary Buseck puts it:

The Attorney General simply got it wrong. Our state constitution says there can be no citizen-initiated constitutional amendment that 'relates to the reversal of a judicial decision.' This proposed anti-gay, anti-marriage amendment is meant squarely and solely to reverse the decision in Goodridge v. Dept. of Public Health that ended marriage discrimination in Massachusetts.

We cannot extrapolate where this suit will go. Clearly the SJC has a stake. It legalized SSM here with a decision and mandated that the legislature pass enabling laws (which it is finally about to do with Senate Bill 967 and House Bill 977). On the other hand, in March, it affirmed Reilly's decision to forbid out-of-staters from marrying here.

Supposedly, the SJC should be above consideration that the local hysterics blame the SJC for everything short of AIDS and dog poop on the sidewalks, but that remains to be seen. This looks like a clear enough and narrow enough point of law.

It should be a quick and easy decision. If the SJC sides with GLAD though, the temperature within 20 minutes of Beacon Street may rise considerably.

Midday Update: After the arguments, the SJC took the case under advisement. A ruling could come immediately or much later. TBD.

Post Post: The Globe covered the arguments and later ran a short that cited the commonwealth's rebuttal:

But Peter Sacks, deputy chief of the attorney general's government bureau and author of the 15-page decision last September that certified the ballot question, said that the provision dealt with attempts during the Progressive Era in the early 20th century to overturn court rulings by going directly to voters. That is different, he insisted, from petitions such as the gay-marriage ban to change the constitution itself. The drafters of the provision were "very clear that the people should be the masters of their own constitution,'' Sacks said.

Post Post Post: And Bay Windows' Ethan Jacobs was there. He reports that Chief Justice Margaret Marshall and Sacks sparred verbally. He contended as above that Article XLVIII, which forbids ballot initiatives overruling court decisions, is not at issue, but she differed strongly:

"That was not intended to protect minority rights. It was designed to protect an independent judiciary," said Sacks.

Yet Marshall disagreed and said it was one of the primary roles of the courts in the United States to protect minority rights.

"It seems to me is, what the Attorney General has substituted [for our system of government] is a system of parliamentary supremacy, that the rule of the majority always triumphs" said Marshall.

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Tags: massmarrier, Massachusetts, same sex marriage, Supreme Judicial Court, GLAD, Tom Reilly