Saturday, November 25, 2006

Posturing Anti-SSM Suit

We hope that someone at the Boston Herald or Boston Globe can afford today's New York Times. As usual, neither local rag covers Boston politics the way the Old Gray Lady does. In this case, the article on the gang of 11's anti-SSM suit is the most complete to date.

Personal Kvetch: Can someone bring these papers into this century? For example, in this case, all three obviously have the suit in front of them. None links to it nor quotes it extensively. That is a disservice and insult to we clickers and other readers. We have having to snatch snippets as we can.

According to the NYT:
  • The suit demands that the SJC order the anti-SSM amendment onto the 2008 general-election ballot, if the ConCon does not vote it up or down.
  • The key claim to justify such constitutional meddling is that the lawmakers in joint session have "legal duty to act" on such an initiative.
  • Falling back on recessing was an effort "avoid a vote and evade its constitutional duties."
  • Senate President, Robert E. Travaglini, according to the suit, "failed to carry out his ministerial duty to require final action" on the initiative.
  • As redress, the suit demands, the SJC must "step into the constitutional breach" by ordering the Secretary of State (also sued) to put the amendment on the ballot.

We see that the kiddies in the Let The People Vote Gallery are eager to use a directive interpretation of vague constitutional wording. In fact, Article XLVIII, which covers the process, kind of implies what the anti-SSM forces says it specifies and even shouts.

The pertinent paragraph in its entirety reads:
Section 4. Legislative Action. - Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.
So, the it's-only-common-sense team say this clearly states there must be an up-or-down vote on every such initiative that's gotten its signature. Well, it doesn't really say that. It is very difficult to believe the SJC, particularly this skittish one, would jump in to create law and to institute new powers for itself to order amendments to ballot in new ways.

GLAD Legal Director Gary Buseck has a colder view of the emotional issue. He sees no chance of success for the suit. "The bottom line is, the legislature acted in accordance with its rules and the Constitution and did the right thing to protect the now-declared constitutional rights of same-sex couples to marry. There's no getting around that."

A related view comes from Lawrence M. Friedman, a specialist on Massachusetts constitutional law at the New England School of Law. He doesn't see an opening for the SJC to require the legislature to act. "It's not at all clear to me how this is something the court can remedy. It doesn't seem likely to me the court will order the legislature to take a vote or subvert constitutional procedures and just put it on the ballot."

The anti-SSM forces and certain ambitious hack politicians have never been about respecting laws and constitutional processes. They want what they want anyway they can get it.

They're not going to get it.

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