Gay marriage vote unlikely

Times Staff Writer

Massachusetts’ highest court on Wednesday chastised the state’s legislators for failing to vote on a proposed constitutional amendment to ban gay marriage but said it does not have the power to force lawmakers to act.

Opponents of gay marriage are seeking to override a 2003 court decision that made the marriages legal in Massachusetts. They collected enough signatures to place the question before voters in 2008, but the Legislature has already met twice without voting on the measure.

If lawmakers adjourn Tuesday without a vote, as many predict they will, the measure to repeal gay marriage in Massachusetts will die. To appear on the ballot, a citizen initiative must be approved by at least one-quarter of the Legislature in two consecutive sessions.


Outgoing Gov. Mitt Romney, a Republican who is contemplating a run for the presidency, has been critical of the lawmakers’ inaction. He was a lead plaintiff in the suit brought by opponents of gay marriage, which argued that lawmakers were stripping voters of their right to amend the state Constitution.

The Supreme Judicial Court’s unanimous ruling Wednesday agrees with the core of that argument, but it notes that “there is no presently articulated judicial remedy for the Legislature’s indifference to, or defiance of, its constitutional duties.”

“Those members who seek to avoid their lawful obligations ... ultimately will have to answer to the people who elected them,” says the ruling, which was written by Justice John M. Greaney.

The court’s 2003 decision legalizing gay marriage sparked a national debate, but three years later, Massachusetts remains the only state with such a law. Three states -- Connecticut, Vermont and New Jersey -- allow same-sex couples to enter into civil unions, and California’s domestic-partnership law guarantees many of the rights of marriage. Maine, Hawaii and the District of Columbia also sanction domestic partnerships.

Meanwhile, 26 states have passed constitutional amendments banning gay marriage.

This would not be the first citizen initiative to wither on the vine in Massachusetts; legislators have adjourned without voting on six of the last seven proposed ballot questions, on issues including abortion, term limits and education.

Lawmakers voted 109 to 87 on Nov. 9 to end debate and delay a vote on the gay-marriage amendment, virtually guaranteeing its demise.


Many spoke passionately before the vote to delay, including state Sen. Edward M. Augustus Jr., who said: “This amendment is about the past. It is about fear and intolerance.”

Advocates of gay marriage celebrated.

“They have refused to be bullied or intimidated, and we fully expect them to keep standing up for what’s right,” Lee Swislow, executive director of Gay and Lesbian Advocates and Defenders, said in a statement during arguments in the case. “It is simply wrong to put the rights of a minority up for a popular vote. That’s what this is about.”

The court ruling came with one business day remaining before the end of the legislative session.

Eric Fehrnstrom, a spokesman for Romney, said the governor hoped the sharply worded decision would change “the math at the Statehouse.” But Romney “doesn’t have a formal role to play” in this matter, he added.

“He is a bystander. Just like any other citizen of the commonwealth, he has an interest in making sure that the Legislature does its job,” Fehrnstrom said.