June 14, 2007

Mass. Legislature Rejects Vote on Gay Marriage Amendment

Marc Comtois


Massachusetts lawmakers voted Thursday to block a proposed constitutional amendment that would have let voters decide whether to ban gay marriage in the state.

The narrow vote was a victory for gay marriage advocates and a devastating blow to efforts to reverse a historic 2003 court ruling legalizing same-sex marriage.

MORE: Via the Boston Globe:
A proposed constitutional ban on same-sex marriage was defeated today by a joint session of the Legislature by a vote of 45 to 151, eliminating any chance of getting it on the ballot in November 2008. At least 50 votes were needed to advance the measure.

The vote came after House Speaker Salvatore F. DiMasi, Senate President Therese Murray, and Governor Deval Patrick conferred this morning and concluded that they have the votes to kill the proposal.

The three leaders - along with gay rights activists - spent the last several days intensely lobbying a dozen or more state representatives and state senators who had previously supported the amendment but signaled that they were open to changing their positions.

Because fewer than 50 of the state's 200 lawmakers supported the amendment, it will not appear on the 2008 ballot, giving gay marriage advocates a major victory in their battle with social conservatives to keep same-sex marriage legal in Massachusetts.

Opponents of gay marriage face an increasingly tough battle to win legislative approval of any future petitions to appear on a statewide ballot. The next election available to them is 2012.

I heard somewhere this morning that both Republicans and Democrats were reluctant to have a Gay Marriage Amendment proposal on the 2008 ballot. How courageous. I guess democracy and the popular vote are only popular if you think you'll get the results you want.

Regardless of where you stand on the issue, the voters of Massachusetts should have been allowed to weigh in on the issue (and the poll numbers were close, if I recall). Now they'll have to take whatever solace they can from voting against the legislators who denied them.

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While we are at it I think those in the legislature who voted to put this matter on the ballot should also include one to limit terms for officials, to see if blacks should be allowed to marry whites and if the earth is still flat? If the energy expanded by bigots to harm gays was turned toward solving real problems like poverty and global warming we might indeed be doing god's work.

Posted by: nick ames at June 14, 2007 8:31 PM

1) Term limits - I'm starting to agree with that idea.
2) I believe that there are a few Constitutional Amendments that would prevent that from happening.
3) Science isn't really a legislative matter, is it? Er, unless your Al Gore or maybe certain Kansas School Boards.

Here's a suggestion: read some of the thoughtful posts and comment sections related to this topic hereabouts. Maybe then you won't be quite so apt to paint with your broad brush. I suspect you'll still disagree, but you should also see that we aren't bigots.

Or maybe you just like to do the uninformed drop-in, bomb-drop because you already know how a bunch of conservatives think yada yada yada.

To tell the truth, we aren't all on exactly the same page on this issue. Some of us have very good philosophical arguments explaining their opposition.

Some of us, like me, don't like the process by which Mass. instituted (ie; Supreme Court "discovered" essentially relied on an argumentum ex silencio) gay marriage and are reluctant to rush forward in the manner that Mass. did. Instead, we'd would favor a more Federalist approach--the experiment of the states--but only if the people or their legislature decides...not the courts.

Ya see Nick, it's more complicated than just labeling us a bunch of "bigots" hating on gay people. We don't hate them, instead, we genuinely wonder what the long term effects on our society and culture will be once marriage is redefined to mean something other than between a man and a women. What impact will it have on families? On the stability of the traditional parent/child relationship? Perhaps it's already to late to worry (divorce, out of wedlock children, etc.).

I could go on, but like I said, check out the "Marriage and Family" section of the site and you'll see that the gay marriage debate is but one portion of a larger issue.

Posted by: Marc Comtois at June 14, 2007 9:05 PM

“ I guess democracy and the popular vote are only popular if you think you'll get the results you want. “

I agree with you – but that is the difference between a pure democracy and a democratic republic form of government. I’m sure there have been numerous instances where democratic republic forms that resulted in the block of an up and down vote went the way you wanted. I can think of an appointee to ambassador that was denied a vote solely because he was gay. The committee chairman had the power to do that – regardless of the will of the people.

And then there’s the war in Iraq issue. The majority of people want a pullout of the troops. The majority of people would also likely not support criminalization of abortion in all cases or eliminate federal funding for stem-cell research. Fortunately, local, state and federal decision are not made based on the popular vote of the people.

My point is that I feel your criticism of the letting the voters decide is arbitrary. I doubt that you want all laws to be decided by popular vote – just those where you are in favor of the likely outcome.

Posted by: msteven at June 14, 2007 9:51 PM


I challenge your assertions about what "a majority of people" wants. For one thing, you don't specify what people. Americans generally? Rhode Islanders? Your circle of acquaintances? Except for the third option, I'm not so sure that the popular vote would fall in the direction that you assume.

At any rate, your comment ignores the context of the issue in Massachusetts. The matter of same-sex marriage was dictated by the single least representative branch of the goverment — the judiciary. Now the representatives are refusing to give their constituents a direct say.

Lastly, how dare you assume that denying an ambassadorship on the grounds of homosexuality is the outcome that Marc, or any of us, would have wanted.

Posted by: Justin Katz at June 14, 2007 10:53 PM

Fortunately, local, state and federal decision are not made based on the popular vote of the people.

Really? Then what are the referendum and amendment process for? Or the move by many "progressives" to nationalize the popular vote re: presidential elections?

1st, the Mass. Legislature showed absolutely no political courage (again, the '08 election appeared to be of primary concern). 2nd, they ignored their constituents. 3rd, the overarching theme was that they simply didn't want to deal with it so they essentially pocket-vetoed the whole thing. But, as I said, the ballot box is a recourse.

What I was aiming at is that many of the same people who are always out front trumpeting "popular vote, popular vote" don't want to subject their ideas to said vote if they're afraid they may lose.

My position on Gay Marriage is centered on a Federal approach, but done the correct way. (The states can serve as laboratories and all that). Now, I'll grant you, the Mass. legislature has "technically" followed the rules, but I don't think they've gone about this the "right" way. (As people sometimes need to be reminded, there is a difference between what is legal and what is right.)

For instance, Vermont civil unions were codified into law by the legislature. Even thought the Vermont SC ordered the legislature to do something, the process was followed and the Legislature ultimately made a law. That is a republican process. The Mass. legislature continues to ignore the issue and is satisfied to let a court's "interpretation" be the law of the land.

Question: so what happens if the Legislature never codifies "gay marriage" into law, and the makeup of the Mass. Supreme Court changes and, for whatever reason, overturns the ruling? (Sure, it's a long shot). It's a lot easier to reverse a court decision that is not supported by a law than to strike down a law that went through the entire republican process.

Posted by: Marc Comtois at June 15, 2007 8:01 AM

I should have been clearer. Regarding the “majority of people”, I was referring to any subset of people such as a local school board, state and federal legislatures, committees and the ultimate example – a panel of judges that have the authority to make decisions affecting a broader group of people. My point being that the smaller group may make a decision that goes against the will of broader groups.

I didn’t mean to point the ambassador issue to you specifically though the placement of my sentence certain does make it look that way. It was an example where one person took the opportunity to use a rule based on his leadership position to deny a vote in the context of the issue of homosexuality. I apologize if I offended anyone by assuming you agreed with it.

“Fortunately, local, state and federal decisions are not made based on the popular vote of the people”. I truly thought I added the word ‘solely’ before ‘made’ - which changes things. I know that vote of the people affects public policy. But, in a democratic republic, it is always a direct impact.

I happen to agree with you that the way same-sex marriage was dictated in Massachusetts was wrong. So in response to your last question, then I would say that the process worked as designed. I do believe that the judicial branch has a legitimate role in deciding whether laws that the executive & legislative branch make are unconstitutional. But I would agree with you that recently this branch (in all regions of government) is finding unconstitutionality where it does not exist.

In the end, I think we agree more then we disagree. I agree that there is hypocrisy on those who trump out the “popular vote, popular vote” mantra. They don’t want it applied for all issues, just for those where they are confident they will win. It seems that many people, regardless of political affiliation or ideology, will take advantage of the rules when those rules can work for them and criticize them when it does not.

Posted by: msteven at June 15, 2007 12:56 PM

msteven, simply, thanks for coming back and responding in a thoughtful manner. That is the model we try to adhere to around here, whether we disagree or not. And your correct: we're closer on this issue than not. And that realization wouldn't have occurred had we not engaged each other in good faith.

Something that Nick, apparently, doesn't want to do.

Posted by: Marc Comtois at June 15, 2007 9:41 PM

Marriage is a social institution and, as such, its nature is based on a coherent set of norms. Thus, a direct vote is THE way to affirm marriage as

1) the union of a man and a woman (i.e. the preferential status accorded the combination of responsible procreation and sex integration);


2) the union of consenting partners (i.e. a private arrangement with legal protections).

Since #2 has been available throughout the country in the form of provision for designated beneficiaries, the SSM campaign has been a direct attack on the nature of marriage -- #1.

The lack of a widely accepted public consensus on the justness of the substitution of #1 with #2 cries out for far more consideration than that shown by the SJC and by the "hands-off" legislators.

The amendment was proposed by citizen petition and in principle it was due much greater deference than shown by the SSM campaign's now-favorite governor and his fellow Dems in the legislative branch.

It was due deference also because of the recent obstructionist history that blocked such an amendment prior to Goodridge and also in its immediate aftermath.

It was due deference also because of the "hands-off" performance of the legislators. No change has been made to the marriage statutes -- none was made before Goodridge and none afterwards.

It was due much greater deference also because the Goodridge opinion produced a closely divided result on the SJC itself. In fact, the opinion is very weak and presupposes the deinstitutionalization of a foundational social institution. That is, it started with #2 and then asked why exclude? It began with its own conclusion even after the opinion noted that the only way to do so is to acknowledge the actual definition of marriage and then to replace it.

So for these reasons the amendment should have been passed on to the ballot.

The amending process is not like the normal legislative process where the legislative majority acts as legislators. Their role is not to ratify amendments; only the direct vote can do that. Likewise, their role is not to shutdown citizen-proposed amendments, although procedurally they can do so.

As with the judicial role, the role of legislators who sit as a constitutional convention is constrained by regulations written into the text of the constitution. However, the principle of restraint is what breathes life into both judicial review of actual cases; and the constitutional conventioner's review of specific amendments that have passed the test of validity.

The legislators should have stuck to the job of vetting, not deciding, the amendment as proposed. That is the basis for this part of the amending process.

Yes, Massachusetts is a republic but its constitution provides for direct democracy as well. There is not the "either-or" that some SSMers have been claiming -- for the sake of the pet cause.

Also, in a republic the People have a government, not the other way around. (With a nod to Ronald Reagan).

So what we now have is a group of legislators who have refused to act directly, in their legislative capacity, to enact SSM. Instead they have turned inside out their role as vettors of a citizen-proposed amendment and shut it down. And the SSM campaign claims this as ratification of the Goodridge opinion -- itself highly politicized -- which made a very weak case for SSM.

The SSM campaign can applaude now all it likes. However, if SSM in Massachusetts stands only on Goodridge and the 1-vote majority on the SJC, then, it has not advanced SSM argumentation one iota. It is stuck in the mud.

What carries it forward?

1. The attack on the nature of marriage.

2. The attack on the consent of the governed.

3. The namecalling and littany of false equivalencies that are the chief features of SSM argumentation.

This recent stunt in Massachusetts means that the SSMers ranaway from the possibility of winning the argument in a state they say is pro-SSM. Ask yourself why they would do that when a direct vote victory would have vaunted their cause with far greater legitimacey.

They did it because their approach is to undermine rather than to build. They no doubt will seek to open their marriage license offices to out-of-staters and the nationalization of SSM.

And they hope to do this before society can respond with a federal marriage amendment. What happened in Massachusetts, with all the procedural obstuctionism and such, can be expected at the federal level as well.

SSMers are not truly in favor of a federalist approach, ultimately, anymore than they are in favor of government with the consent of the governed. Expect that principle to be attacked as it was in Massachusetts this past week.

Posted by: Chairm at June 16, 2007 10:57 PM

The direct vote of the people on this amendment was due because of the closely divided decision of the judiciary? Are you really saying that the closeness of a judicial decision on whether a law is or is not constitutional somehow warrants that the people should get to vote on it?

The legislators role in the amendment process is not to vote on the subject matter but just a … what, rubber stamp to get it to the ballot?

I agree with some of what you wrote regarding the Goodridge decision and the definition of marriage. But your seething over the result shows when you assert that SSMers are not in favor of the federalist approach or in favor of law in consent of the governed. Yes, and anti-SSMers are bigots and the continuation of the troops in Iraq is not in accordance with the consent of the governed. The people whom the people elected voted and your side lost. I will acknowledge that I agree with you that the case that started all this was ruled incorrectly.

But sticking with my original point, procedural obstructionism is used often. Supporters against the opponents or vice versa use it. If you are going to fairly criticize, criticize the laws and the process. Not the people who choose the use them when it meets their agenda.

Posted by: msteven at June 17, 2007 8:55 PM

The problem is both substance and process. The SSM campaign has just shown its corruptive all round.

I am not seething in the sense that annoyance with the result is simply an emotional reaction.

No, I am responding, not reacting.

And I am very critical of the abuse of the amending process which has been on the defining features of the SSM campaign in Massachusetts.

Compare this stunt with the process of judicial review which also depends on the principle of restraint. That, too, was trampled in Massachusetts.

Two wrongs do not make a right, which is a good reason for the legislator (as an individual representative of the People sitting in a constitutional convention) to feel obliged to show greater deference and to go more than half-way to serve as a responsible conduit rather than to intervene as an obstacle to the opportunity for the governed to express their consent on this matter.

The SSM campaign complained that the issue was divisive. Oh well, then. The solution is to ... to reject the legitimate use of direct votes to build a consensus.

Their only purpose was to evade the very people they shut out of this public issue. They will continue with this mistaken approach, don't doubt it, for as long as they can get away with it.

Their unspoken motto is, SSM right or wrong.

--> Are you really saying that the closeness of a judicial decision on whether a law is or is not constitutional somehow warrants that the people should get to vote on it?

Yes, in combination with the other reasons that I mentioned, it is clear that greater deference was due, on the part of a member of the constitutional convention, for this citizen proposed amendment. It was a valid proposal which was not properly vetted but rather attacked.

I do not expect merely a rubber stamp but rather a responsible vetting. They could not ratify the amendment on their own. Their job was to vet and then to pass the issue on to a direct vote which might have ratified it or rejected. The legislators could have taken legislative action but that did nto happen before nor after Goodridge. Hence, their role was not to prejudge and shutdown this citizen proposed amendment. It was to involve the citizens directly; instead they chose to let the SJC's 4 judges decide.

So, yes, the SSM campaign has proved itself to be an attack on the nature of marriage AND an attack on the foundational principles of self-governance.

That's all the more troubling since the SSMers stand on that very poorly reasoned and highly politicized act of the SJC's razor thin majority.

SSMers hate majorities as "tyrannical" except when these are comprised of actors willing to undermine the state's respect for the consent of the governed.

So much so that the SSM campaign now claims that this stunt "ratified" the Goodridge opinion, on its merits!

Come on. Are you not appalled by this turn of events? I would expect that any democrat (small d) and any republican (small d) who valued intellectual honesty, and the basis for societal adherence to a written constitution, would be appalled -- whether for or against SSM.

Your other examples don't make this stunt less appalling, by the way.

Posted by: Chairm at June 18, 2007 2:36 AM

Let’s say that the Supreme Court had a case and the decision was that they defined a fetus as human life at the point of conception and the vote was by a slim majority.

Then the opponents of this view, the pro-choice movement, mounted a campaign to put on the ballot a constitutional amendment that said no law can interfere with a woman’s right to an abortion or that the legislature or judicial branch cannot make that type of determination or something to the effect of overriding the Supreme Court decision.

The legislature, either based on their own personal views or by pressure by their constituents, denies the measure getting on the ballot. In other words, they didn’t just vet and pass the issue along.

How would you feel about this? Would you be appalled? Did the system work in this scenario? Did the legislature do their job?

My guess is that you’ll use some specific component to say that this scenario is not like this turn of events. But regardless, you should see what I mean.

You have not convinced me that your problem is both substance and process. I still believe that if the agenda were different, the process wouldn’t be a problem for you. Yes, I’m saying that taking advantage of processes that benefit their agenda or in a phrase “the end justifies the means” is not limited to SSMers, a political party or people of ideology over another.

And while I don’t agree with the Goodridge decision per se, I don’t agree that all SSMers have the malevolent intent you describe.

Posted by: msteven at June 19, 2007 1:50 PM

--> "Did the system work in this scenario? Did the legislature do their job?"

No and no.

But keep in mind that your scenario lacked the history of procedural obstructionism and the very weak judicial opinion that are *central* to the SSM scenario that has just played out. So your scenario is a weaker example of the real stunt we've just witnessed.

In fact, as we know, the opposite has occured with abortion. A judicial diktat went much farther than even the pro-choice side would have gone. Now the pro-choicers are of one mind and even defend the abuse of the democratic process, at each step along the way.

There is a lot of crossover in the argumentation of SSM and of abortion.

How would I have your scenario play out, instead?

First, there is a very strong argument against such a proposed amendment so I would be glad to contribute to its defeat in a direct vote. I would not encourage evasion. I would fight for a fair fight -- using democratic principles -- and am confident that the best argument would win out in the end.

(There is no denial that each of us began life as a human being at conception. Balancing rights then comes to the fore, not extinguishing rights.)

Second, if the pro-choice amendment would prohibit construing a right to life, then, the amendment campaign would help build consensus, one way or the other. A vote -- especially, as in the SSM case, without debate -- of constitutional cenventioners would do nothing of the sort.

So on both points your example would not have me applauding obstructionists. If the citizen proposed amendment had met its basic requirements, and it was vetted so it meant what the proposers itnended it to mean, then, okay, bring it on.

I think the amending process begins with constitutional conventions due to the need to clarify the single issue at stake. So when the process is honored, and due deference is based on the principle of restraint, then, the question on the ballot becomes all the more clarifying. In your scenario, for example, the amendment would probably not be so stark -- that there is a right to choose death of another person and there is no right to one's life. Right at this point the proposed amendment would be shaped to build a broad consensus rather than a narrow and easily defeated absolute.

By the way, the Massachusetts marriage amendment was an example of that very thing.

--> And while I don’t agree with the Goodridge decision per se, I don’t agree that all SSMers have the malevolent intent you describe.

Hang on. The SSMers who applaude this latest stunt now clearly stand on a very poor judicial opinion -- and that is the substance for which they have defended the use of these obstructionist tactics.

I don't see how you can seperate substance from process in this case when the supporters of SSM embrace both as one.

In principle, and in practice, I seperate the two in terms of vetting rather than deciding; but they have done the very opposite and disparaged the principles that breathe life into the direct democracy provision in their constitution.

Even people who supported SSM if only via the consent of the governed have been applauding the pro-SSM outcome. Suddenly the process is expendable. Even those who supported SSM but disliked the weakness of the Goodridge opinion, have now found great merit in that diktat's defence. Some even try to wrap the mantle of federalism around this even as the SSM campaign prepares to nationalize Goodridge. So in their pro-SSM view, they certainly would justify the means by the end. The reassurances of a few SSMers that process is important just doesn't balance the game, not at all.

They disparaged the amending process upside and down. Then they abused the procedures to get this result. Now you will see them claim that the consent of the governed has ratified SSM. Yes, they will claim this and say that opinion polls decided the matter, absent a direct vote. They thus disparage the reason that campaigns are held. They thus disparage the validity of the process itself -- from beginning to end.

And they will cling to the rights-based claims (as per Goodridge) which depend on a littany of false equivalencies. So their abuse of process remains mired in the quicksand of Justice Marshall's examples.

Maybe there are exceptions who will stand against their fellow SSMers and strongly condemn the tactics used. I noticed no SSMer urging the legislators to go against the SSM campaign's obstructionism. They just went along. And today they applaude.

What is the celebration about? A successful attack on the nature of marriage AND on the nature of consent of the governed.

Posted by: Chairm at June 19, 2007 6:38 PM

I do not pay as close attention to the movement and campaign for/against SSM (or abortion, or that matter) as you do. As a result, I’m not aware of the major celebrating and applauding you referred to.

To the extent that there was, I would say that the SSMers could see this as a victory in that the majority of the legislature, as elected by the people in Massachusetts, voted in support of SSM. I cannot see where one could say that this somehow legitimizes the Goodridge judicial decision.

Your point is that their role in this scenario was not to vote on the issue itself but just to vet and put the constitutional amendment on the ballot for the people to decide.

I don’t happen to think this is an issue that should be based on the process of amending the constitution, but I do see where it was the decision of the judiciary which drove the opponents of it to this process.

Posted by: msteven at June 20, 2007 1:36 PM

--> I cannot see where one could say that this somehow legitimizes the Goodridge judicial decision.

This is the most common reason given by the legislators who voted to shutdown the amendment.

The SSM campaigns main message has been that the majority had no "right" to vote on the "rights" of a minority. Obviously, they stood on the Goodridge opinion. If not the substance, then, the naked over-reach of the SJC's slim majority. Either way, they are now claiming this recent vote has ratified Goodridge. It hasn't be they claim it just as they pushed their rights-based claim -- false equivalencies are all the rage among SSMers.

Posted by: Chairm at June 20, 2007 11:53 PM
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