Coming up on January 2nd and likely for sometime afterward, we are going to hear more warning sirens and fingers on the blackboard over parliamentary moves to kill the anti-same-sex-marriage amendment in Massachusetts. Even those of us who follow this intensely can benefit from the AP's Steve LeBlanc analysis.
He's written about this for months. This time, he provided the background and then went to constitutional experts to discuss what it all means right now.
This is still under discussion for several reasons. Of course, the anti-gay forces, and an unnamed current Massachusetts governor who is whoring this to advance his POTUS aspirations, want the amendment to advance and end up on the 2008 ballot. It would be bound to lose, but they are delusional enough to suppose that if they rub the state's nose in this divisive and unpopular drive for another two years that voters will reverse direction and support them.
Moreover, there are many let-the-people-vote types who confuse representative democracy with town meeting or a lynch mob. Together, both these groups are screaming about their very literal and limited interpretation of our state constitution's Article XLVIII. This is where the AP piece is useful.
As LeBlanc states, "The tussle hinges on the interpretation of a single sentence in the constitution: 'Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays.'"
According to that current governor, this means that the Constitutional Convention (ConCon) of both houses must absolutely vote the amendment initiative up or down. Someone with greater expertise and a broader view can describe this differently.
Specifically. Lawyers Weekly Publisher and Editor-in-Chief David L. Yas says, "That's a nicely symbolic way of making his point, but it's a little empty at the end of the day. The ballot initiative process is part our Democratic process, but so are the legislative tricks and treats."
Among concurring experts are New England School of Law constitutional-law professor Lawrence Friedman. He says that Article XLVIII "dictates the form of a vote, but does not mandate a vote." He added that even those suing to get the state or federal courts to force a vote or override the legislature by putting the amendment on the ballot could convince one of the courts that the article requires a vote, so what? He concluded, "The best the proponents could get (from the courts) is the determination that Article 48 means what they say it means, but it's very unlikely that any state or federal court would order the Legislature to take a vote."
Yas adds as many have noted that our state high court has already ruled that separation of powers does not allow it to compel votes by the legislature. He said, "They took a vote to recess and there's case law to suggest is that there's nothing wrong with that."
Yet, it remains peculiar to hear where some of the calls for an up-or-down vote on this originate. Even one of the stalwarts over at our beloved Blue Mass Group rode the let-the-people-vote pony around and around the ConCon paddock. Whether he was simply showing a strong libertarian bent or actually jumped the shark on this one remains to be seen. However, it is instructive to note that it is not only anti-SSM ranters who fall into this trap.
Governor-Elect Deval Patrick is coming in with big progressive ideas and firm principles of equality. There are likely to be other areas where he does not want to play such games with what should be rights.
He already made it plain during his campaign that the civil rights of others should never be up for a plebiscite. Sometimes progressive goals may lose or have to regroup if we rely too heavily on literal interpretations of moot parliamentary procedures and specific laws' wording. That falls into what Emerson named when he wrote, "A foolish consistency is the hobgoblin of little minds."
Let's all try not to go off in a pout if our narrow views miss the big picture. We can try not to cry foul or claim some slur like situation ethics if we don't get our way when we want it.
We voted in a huge majority for big change. That will require flexibility by all of us.
Tags: massmarrier, Massachusetts, same sex marriage, Lawyers Weekly, ConCon