SJC Gives Nod and Warning

The Massachusetts Supreme Judicial Court ruled unanimously today that the drive to stop same-sex marriage here through a constitutional amendment can go to Wednesday's ConCon.

Note: Click here and on option 2 today to see the initial ruling. The link is to a slip decision, which is temporary and will disappear when the SJC releases the formal ruling. The GLAD link at the bottom of this post should be less ephemeral.

Key to the finding was concurrence with Attorney General Tom Reilly's interpretation that this does not violate Article 48 of the commonwealth constitution. Specifically, the slip decision includes:

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. The debates further confirm that the "reversal of judicial decision" exclusion was not intended to preclude such an amendment (or enactment), so long as its subject matter was not barred by other important exclusions not at issue in this case.

On the other hand, the SJC was not delighted with the intent of the drive. It also includes:

There can be no doubt after the Goodridge decision that the Massachusetts Constitution protects the right of a couple who wish to marry, and are otherwise eligible to marry, to obtain a marriage license, regardless of gender. It is equally clear that the proposed initiative is directed toward withdrawing this right from a distinct segment of our community, thereby prohibiting, as matter of constitutional law, same-sex couples from committing to civil marriage and from attaining the multitude of legal rights, and financial and social benefits, that arise therefrom. The proposed initiative cannot be said to further a proper legislative objective (as was categorically decided by the Goodridge court, there is none [Secretary of the Commonwealth]). 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. Our citizens would, in the future, be divided into at least three separate and unequal classifications: heterosexual couples who enjoy the right to marry; same-sex couples who were married before the passage of the amendment (but who, if divorced, would not be permitted to remarry someone of the same sex); and same-sex couples who have never married and, barring the passage of another constitutional amendment on the subject, will be forever denied that right.

It also hinted at further legal action by concluding "There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that 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."

The SJC notes that Reilly skipped that key aspect because no one specifically asked him. "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," the opinion reads.

The Globe had a short on the decision, including quotes from a disappointed GLAD executive director,Lee Swislow. "The courts are very reluctant to rule against a sitting attorney general, despite our strong legal arguments. So now obviously the focus is going to turn to the Legislature, which has a chance on Wednesday during the constitutional convention to do the right thing and defeat this amendment."

GLAD also has a press release with its immediate reaction and a link to the decision. The release quotes plaintiff Johanna Schulman as saying, "“I'm disappointed, but the fight is far from over. I was able to marry the person I love after 19 years together, and when people see how ordinary our marriages are, they are ready to move on to other important issues."

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Tags: massmarrier, Massachusetts, amendment, same sex marriage Shulman Tom Reilly