Gay & Lesbian Advocates & Defenders (GLAD) has filed suit to contest Attorney General and Gov candidate Tom Reilly’s certification of the proposed ballot question that would overrule the Supreme Judicial Court’s legalization of same-sex marriage.
As I explained here, my take on this issue is that Reilly was probably right on the law, as distasteful as some may find that result. And I stand by my prediction that the SJC will uphold Reilly’s certification, most likely without dissent. This means that the battle will be fought first in the legislature – where it’s starting to look like it may actually not be all that easy to round up 50 votes in support of this thing – and then, of course, on the 2008 ballot.
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… what arguments can GLAD make? What’s their legal strategy? And why do folks like Harshbarger agree with them? I honestly don’t know.
GLAD (and I) disagree with Reilly’s (and David’s) claim that the constitutional prohibition on citizen initiatives whose purpose is to undo judicial decisions, applies only to recall. I think it’s a pretty strong legal argument for GLAD to pursue. I’m not sure if there are any writings from Adams or his contemporaries to explain their rationale, though, and I’d be curious to read them if there were.
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There’s also the requirement for a waiting period between substantially similar amendments – that is, you’re not supposed to try again for a few years, if an amendment on a particular issue has just been rejected. I don’t know if GLAD is going to argue that one, because I haven’t heard it mentioned in the news reports. If they do, the counter-argument would be that this one is different enough from the one just rejected (because of civil unions) that the waiting period should not apply.
All the article 48 stuff dates from 1918. Reilly’s certification letter (linked in my post) quotes a lot of the historical evidence for his position.
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And here’s my big question about GLAD’s position. Let’s say the SJC were to issue a really horrible interpretation of the state Constitution – for example, that constitutional guarantees of equal protection don’t apply to women. What’s the point of having an initiative process to amend the Constitution if it’s not available to “overrule” the Court in cases like that? Yes, I know, the legislative amendment process is also available, but the whole point of Article 48 is to give THE PEOPLE significant control over the laws and over the Constitution. Saying that the initiative process isn’t available to overrule bad court decisions seems to me to completely gut it.
If the court fails to protect a right you think belongs there, the obvious recourse is to pass the law you want anyway – the court isn’t preventing the state from having such a law, it’s just saying the Constitution doesn’t mandate it. For example, if the court hadn’t ruled that prohibiting gay marriage was unconstitutional, it would still have been legal to allow gay marriage by legislation. And we do have a process for initiating a law with a citizen petition.
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Further, if we really want a constitutional amendment in response to a court ruling, the legislature is allowed to initiate one.
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I don’t see why you think this guts the amendment process. I think the rule is there to prevent exactly what we’re seeing – a stupid political tit-for-tat about the popularity of a court ruling.
There are lots and lots of constitutional rulings that cannot be undone by legislation, as you know. And – as I said in my previous comment – I know there’s a legislative amendment procedure, but that doesn’t come from the people. It comes from the legislature. The whole point of Article 48 is to give the people a way around an obstinate legislature that won’t do the “right thing” (as defined by the requisite number of citizens willing to sign a petition).
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And I quite disagree with you about the purpose of the rule. If you think a popular initiative to amend the Constitution to overrule a Court decision is “a stupid political tit-for-tat,” then you disagree with the fundamental premise of the initiative, which is to give “we the people” the ultimate say over the contents of the Constitution, with a few narrow exceptions relating to religion, structure of the court system, and local affairs). That’s a respectable point of view, but it’s not the one adopted by the drafters of Art. 48. (Also, doesn’t it strike you as odd that the “excluded matters” are all narrowly focused on particular substantive areas, yet if GLAD’s interpretation is right, the “reversal of a judicial decision” exception essentially swallows the entire rule by putting huge areas off limits to the people simply because it was a matter addressed by a court?)
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I found the historical stuff in Reilly’s certification letter to be pretty compelling (did you read it?), and I found GLAD’s submissions to Reilly (here and here) to be quite weak on those very points. Maybe GLAD will be able to muster better authority before the SJC. In any event, I stand by my prediction: 7-0 to uphold Reilly’s action.
at least based on their complaint.
While I don’t have the material right in front of me, the heart of the opinion from the AG’s office was based on a prior court case from 2000 (or so) based on a challenge that came from much the same basis as the GLAD challenge.
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As I said at the time, it is highly likely that the SJC would stick to its own precedent, and therefore a decision by the AG’s office to bar the petition would have been challenged in court and received an immediate stay to allow the signature collection to continue.
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The GLAD lawyers are clearly taking the approach of using any available tool to fight for their clients, even if there is no chance of winning.
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Politically (not legally), this is a really stupid move. It makes the supporters of equal marriage look desperate to keep the measure off of the ballot, even as the chance of getting 50 legislators to support it continues to decrease.
and then, of course, on the 2008 ballot.
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Why “of course”? You said it yourself – getting 50 votes in favor of this amendment is going to be tough. And they have to get 50 votes both this year and next year. We’re going to try to stop them, and I think we may. If we do, it won’t go on the 2008 ballot.
What I meant (obviously) was IF they succeed in getting 50 votes in two consecutive sessions, then the battle is in the 08 election.