Sunday, December 10, 2006

Ill-Fitting Anti-Equality Suit

That quixotic suit -- joined by occasional Gov. Mitt Romney -- demanding that our high court force the anti-same-sex-marriage amendment on the ballot in 2008 is available. Get the PDF here.

Props to Kim Atkins at the Boston Herald for making us aware of the link.

The suit seeks to bypass the joint legislative session (Constitutional Convention or ConCon) because lawmakers are not passing through the amendment. The gist is that the recent procedural adjournment and subsequent stalling on voting the amendment forward for another year is only the latest in such steps. The suit seeks to breach the fabric of separated powers in the process.


What They Posit

We can set aside for the moment the delicious irony of this group of righties calling on the justices to become activist. They want legislation from the bench in this exertion of force by one governmental branch over another. It is to laugh a civic laugh.

To understand their argument, consider their three questions, all of which they try to answer in the affirmative:
  1. Do the initiative amendment provisions of Article 48 of the Massachusetts Constitution require the Joint Session of the General Court, convened for the purpose of considering such initiative amendments, to take final action on the Marriage Initiative Amendment by a vote of the yeas and the nays before the expiration of the session on January 2, 2007?
  2. Is the President of the Senate, as the Presiding Officer of the Joint Session, required, consistent with his oath to uphold the Constitution of the Commonwealth, to bring all properly presented initiative amendments to the floor until such a vote is taken?
  3. Does this Court, consistent with its powers and duties to construe the Constitution and ensure compliance therewith, have the power or authority either (a) to declare or express the law respecting the application of Article 48;(b) to issue a writ of mandamus compelling the Presiding Officer to execute his constitutional mandate; or (c) in the event the Presiding Officer fails to bring about a vote on the Marriage Amendment on or before January 2, 2007, to direct the Secretary of the Commonwealth to take action to remediate such failure?
Check the wording of Article XLVIII here.

The Arguments

Unfortunately, their legal tower of chips lacks sufficient foundation. Anyone should be able to feel their frustration.

The anti-gay, anti-SSM forces has worked on this for years and gotten tantalizingly close to a spot on the ballot. They even managed to get a cowed court to pretend this does not violate our constitution by trying to overturn a judicial decision.

However, they are going for strict legal grounds in this last-ditch effort. When the ConCon comes out of adjournment on January 2nd, it almost surely will not vote on this amendment. That is the last day for consideration and inaction would kill it.

As Uncle Scar said in Lion King, "Life's not fair now, is it?"

For the suit, all three points are moot, despite their strong and unsupportable assertions. Does Article 48 compel a final up or down vote? That's debatable from the wording. It clearly defines how a final vote, if taken, must be taken. Yet, it does not specifically demand one or provide any penalty if not taken.

Laws and constitutions rely on specificity, not assumptions or assertions.

Instead, the suit makes two assertions that the SJC is likely to reject:
  • Its (Article 48's) plain language and the circumstances of its enactment leave no doubt that Article 48 was intended to facilitate, without legislative obstacles, access to the ballot by citizens in order to amend their constitution.
  • In the present procedural circumstances, the Presiding Officer can neither invoke procedural rules nor entertain procedural motions to avoid a vote by the yeas and the nays on the Marriage Initiative Amendment without violating Article 48.
Unfortunately, those are in the trust-me class and not supported by precedence, which even the suit notes in passing.

Also, the SJC itself has occasionally scolded ConCons and Senate Presidents for not forcing such votes, but has also ruled that it cannot compel action. There is this apparently annoying concept of separation of powers. This suit claims that in this case, the SJC has to transcend that. We believe that this would be a severe breach of our constitution, as well as legislating from the bench.

Procedures v. Pass-Through

Underlying the 64-page brief (hmm, misnomer?), is the concept that the ConCon must approve and pass through the amendment if the 50 of 200 votes are there to do so. The suit makes its most outrageous claim in this area. Specifically:
No right is more firmly embedded in the Massachusetts Constitution than the right of the people “to alter the government and to take measures necessary for their safety, prosperity and happiness.” Mass. Const. Preamble. The vehicle for exercising this right is enshrined as the 48th Article of Amendment, passed after early experience confirmed the necessity of reserving to the people a right and opportunity to amend the Constitution and laws of the Commonwealth by popular initiative.
Here, the suit conflates and then muddles two crucial concepts. That cited right relates to the legislature as representative government. This is in opposition to the dictatorial rule of the British colonizers, a government which mingled nobles and clergy in a heavy-handed autocratic rule.

The suit jumps to claiming that the initiative petition added in 1918 was what those silly folk who led us through the Revolution and constitutional process really meant.

The brief then goes on in several places to claim that the ConCon has the absolute responsibility to pass through the amendment. It also asserts without legal basis that the ConCon and Senate President are forbidden from using procedural moves to delay or block such amendment.

Again, you can sense the frustration, but they need more than self-righteousness to prevail on this.


The suit's own wording form a fair coda to this. It demands new powers for the court over the legislature. It claims, "Unless this Court more actively intervenes, it is obvious that this misperception and the resulting pattern of legislative indifference has and will emasculate Article 48, stripping the people of a fundamental constitutional power."

It also concludes, "If this Court cannot express and clarify the law as respects the operation of Article 48 thereby promoting adherence to its significant constitutional provisions, then no one can."

Well, it can't and amen to that.

Tags: , , , , ,


massmarrier said...

Mike Silverman tried to post the following comment but found verification buggy:
I wish I was as confident as you in the outcome of Romney's suit. You are right that on its face, the suit is laughable; the problem is that the Massachusetts Supreme Court is not a very reliably decision- maker these days and recent history has shown a Court which appears to be doing everything in its power to hit the "undo" button on its 2003 ruling.

They've ruled against allowing non-native couples to wed in the state, they ruled to allow the initiative amendement in the first place, even though it clearly "reverses" a previous ruling, and even in this current case, the justice who heard the initial complain declined to dismiss it, even though precedent clearly encouraged that move, and instead agreed to forward it to the full court in an expidited manner.

I'd like to think the Court will respect both its own precedent and the separation of powers and toss Romney's complaint out on his ear on the 20th, but I am not very confident in this outcome.


Anonymous said...

"the resulting pattern of legislative indifference has and will emasculate Article 48"

Is it not appropriate that they would choose the word "emasculate"? This whole anti-marriage business is nothing more than a pulic display of insecurity about their own sexuality by certain people. Many pro-equlity people refer to these folks as "haters". Perhaps a more accurate name would be "self-haters".