Blue Mass Group

Reality-based commentary on politics.

Governor Reilly Will Not Take a Pass

By

I believe that the majority of voters in Massachusetts support Democratic values.  And yet their anxiety over a Democratic Governor’s inability or unwillingness to stand up to the overwhelmingly Democratic Legislature has played a huge role – in my opinion, the biggest role – in the voters’ decisions to elect a Republican to the corner office for four consecutive terms.

Last night, the three Democratic candidates were pushed to take a position on whether the Legislature should vote on a constitutional amendment that would ban same-sex marriage or if they would condone the use of  parliamentary tactics to kill it without a vote.  This is a sensitive issue, no doubt, but one that unquestionably demands an unqualified position from our would-be Governors.

Reilly: “I’m opposed to the constitutional amendment, but, yes, I think the legislators should vote on this.”

In stark contrast, both Gabrieli and Patrick took a pass, deferring to the Legislature.  Patrick sidestepped by saying that he wasn’t running for the Legislature, he’s running for Governor.  Gabrieli volunteered that he would weigh in if it ever reached the voters.  Both answers completely failed to address R.D. Sahl’s simple, specific, repeated question: should the Legislature vote?  Yes or no.

The Constititional Convention is coming soon.  The time to stand up and be accounted for is now or never.  A Governor doesn’t get to pick and choose his issues or their timing.

Oftentimes, the Governor will be required to stand for or against something before the Legislature or proposed by the Legislature.  More often than not, these issues will be complex and highly sensitive.

Take the Ruane special pension for instance.  The former State Representative passed away this past week.  It was a truly sad story, which bill proponents leverged to the hilt, but the pension issue was still a separate matter entirely.  Tom Reilly and Deval Patrick publicly opposed the circumvention of the pension rules to benefit a former State House “friend.”  Chris Gabrieli weakly offered that he would not meddle in the affairs of the Legislature.

Th affairs of the Legislature, huh?  Do you know where that bill is today?  On the Governor’s desk. That’s where all bills eventually arrive once they have been passed by the Legislature.  When the Legislature is playing Monopoly with the taxpayers’ money, it is precisely the job of the Governor to meddle in legislative affairs – the sooner, the better. 

The same is true of the constitutional amendment process.  You either believe that it only matters if you get the answer right (preserve same-sex marriage) or you believe that it is also important to get the process right (let the Legislature vote, up or down). 

The next Governor is going to be accountable for everything and taking a pass on contentious issues simply will not cut it.  The Democratic candidates will be held to a higher standard by voters seeking an independent voice in the corner office.  By bucking the issue to the Legislature, Gabrieli and Patick merely feed time-proven concerns that voters have about Democratic candidates.  If they believe that the Legislature should do everything within its power to kill the constitutional amendment, including backroom parliamentary manuevers, they should simply say so.  The worst possible answer is “let the Legislature decide.”

Massachusetts wants a Governor who will take strong positions when it still matters.  Governor Reilly will not take a pass.

Please share widely!
fb-share-icon
Tweet
0

Comments

  1. MaverickDem,

    <

    p>
    As we discussed before, Reilly did have a chance to stand up on this issue and took a pass, essentially deferring the decision to the legislature.  As you know, Reilly certified the ballot initiative that will be voted on by the ConCon even though it was in his power not to because the initiative potentially violated the state consitution.  As we have discussed, the state Constitution does not allow a citizens petition amendment to explicitly overturn a ruling of the SJC.  This amendment would in fact, and its purpose is to, overturn Goodridge.  As two former AG’s have stated, Reilly should have decided not to certify this amendment.  We’ll see what the SJC has to say about it when they hand a ruling down in a pending case on this issue.

    <

    p>
    So it seems to me that Reilly did in fact choose not to take a stand on this issue, instead shirking his constitutional duties and passing this issue off to another group to take a hard stand.

    <

    p>
    Again, I repeat, while Reilly claims to have seen the light and now be on the side of gay marriage, every action he has taken as AG has been to thwart marriage equality.  You have to run on your record, and in this case, Reilly’s record is God awful.

    • Wahoowa, let’s make a bet: I GUARANTEE you that the SJC will support Reilly’s decision to certify the ballot initiative.  If I am wrong, I will devote an entire post to my error.  In the alternative, you will do the same.

      <

      p>
      As you know, I support same-sex marriage.  However, I will not support an “ends justifies the means” approach to the issue when it comes to the constitutional amendment process.  It is as important – if not more so – to arrive at the correct answer while respecting the constitutional amendment process than it is to simply get what we want as expeditiously as possible.  You continue to argue that Tom Reilly could have chosen not to certify the question without a cost, but the effect on the amendment process would have been highly detrimental.

      <

      p>
      For those seeking a better understanding of the basis (as I understand it) for Reilly’s decision to certify the ballot question, I will cut-and-paste from our previous exchange on the subject:

      <

      p>

      First, let me unequivocably state (again) that I personally support gay marriage.  You raise the red herring that I “sound like a Republican decrying activist judges” when I have said nothing of the sort.  The SJC’s job is to interpret the law and I was personally pleased with the Goodridge decision, both in the result and the manner in which the Court reached its decision.  Second, let me point out that there is nothing inconsistent with a personal belief in gay marriage and a recognition that allowing a ballot initiative that would amend the constitution in a manner to go forward is constitutionally sound and democratic.  The issues are not mutually exclusive.
      I disagree with you that “our system has been created to protect the masses from passing laws that infringe upon the minority.”  Although not infrequently stated, that notion is simply incorrect.  Our system has been created to protect the rights of individuals, which sometimes results in decisions that protect classes of people who may constitute a minority of the population.  The system, however, is not designed to protect “minority groups,” but rather to uphold individual rights.  For example, Goodridge was not a decision of behalf of gays and lesbians per se, but rather it was a decision on behalf of those specific gay individuals who sought the rights and benefits of marriage.  While it was a landmark decision for gay rights, it was predicated upon the rights of those individuals.  Society simply gets to reap the benefit (in my opinion and likely your own) of that decision.

      The fact is that, while I would personally vote against the ballot initiative, it does not “overturn” Goodridge, as you claim it does.  Only a future SJC decision can overturn that decision.  The ballot initiative is a response to Goodridge, but it does not purport to overturn the case.  The initiative – hurtful, ignorant, misguided as it is – seeks to explicitly define marriage (obviously with an eye towards future decisions that may overrule Goodridge.  Under your logic, only the legislature should have that amendment right after the SJC makes a decision.  A strong argument can and should be made that the public should never be denied the right to amend its own Constitution.  After all, its our Constitution, not the Legislature’s.

      Try not to think about this from the perspective of the Goodridge decision, which most of us like, but rather from the perspective of some decision that you would strongly disagree with.  What if the SJC had ruled against gay marriage, 5-4, on the same constitutional grounds?  Do you think that citizens should be barred from amending the State Constitution to define marriage in a way that would allow gay marriage simply because 5 judges had an opinion on the matter in 2003?  I don’t.  That would place a great deal of power in the hands of a handful of people over issues important to both the present and future generations of Massachusetts residents.

      I see that we are not going to agree on this point, but I honestly respect your position.  Ultimately, the SJC will have the final word, as it did with Goodridge (supporting the right of all couples to marry) and as it did with the 1913 law (supporting the state’s right to enforce the 1913 law).  I happen to believe they got both of those issues right and I suspect that they will do the same with this one.

       

    • While your response detours to the ballot certification issue, it still does not address the issue of why Deval Patrick and Chris Gabrieli did not take a position on: 1.) whether the Legislature should vote on the constitutional amendment; or 2.) whether they would support using parliamentary procedures to kill it.

      <

      p>
      But if killing the measure would be OK, why not just say so? If, as you postulate, the question should not even be on the ballot, why not just kill it?  Why are their positions so painfully awkward?  How do you reconcile your position with their failure to take a strong position, as a Governor should do?

      <

      p>
      Maybe it’s because they a want to play “good guys” on the issue, but they don’t want to polay “bad guys” on the process.  They want the Legislature to do the hard work for them.  Is this what we can expect from them as Governors?  Tom Reilly has a position, so why don’t they?

      • MaverickDem, I think (even as a Patrick supporter) that you have a good point about Reilly’s decision to allow the (terrible) ballot initiative to go forward.  I am surprised that most gay-marriage proponents don’t seem to admit the possibility that as attorney general, Reilly made an honest determination that the legislation, though terrible, meets the criteria for an initiative.  I don’t know enough about the law to know whether it is clearly true, clearly false, or debatable whether it meets those criteria, but I’m willing to believe that Reilly made his call based on his interpretation of the law.  Is there really evidence that he didn’t?

        <

        p>
        At the same time, though, I don’t think you’re giving Patrick credit for a nuanced position with regard to the legislature.  He should say (and I think he has) that it is a terrible proposition that does not deserve to be on the ballot.  But the constitution, AFAIK, gives the governor no role in the initiative process.  Any statement beyond “I would prefer that it not be on the ballot”, I think, is interfering with the prerogatives of the legislature, in a way that you generally don’t do in a separation-of-powers system.

        <

        p>
        Actually I have some sympathy with the notion that it should be on the ballot, so that the good guys can win and give the first ballot victory for gay marriage.  But on balance I’m more offended at the idea that the existence of the marriages of so many good people, and the opportunity for future marriages, should be voted on rather than considered a matter of settled law.

        • do you and MavDem agree that it is ok to put forth a ballot question that wil take away the rights of some of our citizens and if so how does that reconcile with our being a republic? Im being curious

          • leftisright, the Constitutional amendment process is as democratic as it gets.  It is even more democratic than the decision of the SJC, which I support.  Since I just addressed this very point in a separate post, I will repost here:

            <

            p>

            The SJC’s job is to interpret our Constitution.  That is what they did and i believe they did their job well.  As a result, Goodridge is now the law of the land in Massachusetts and Tom Reilly has said exactly that.

            However, the SJC’s decision is not an end point and never will be.  If the process treated high court decisions as infallible, we would still be living under the “separate but equal” doctrine of Plessy v. Ferguson.  (You see, Mem, your concerns about the tyranny of the majority have also taken place in a majority of the Supreme Court.)  Fortunately, our system allows for stare decisis, the process by which future courts may review the decisions of previous courts and, as in the case of Plessy, correct past mistakes.

            And this is where people are missing the much bigger picture with Tom Reilly’s decision to certify the same-sex marriage amendment. . .

            As I previously mentioned, the SJC’s job is to interpret the Constitution.  It does not make immutable law.  In fact, it does not “make law” at all.  The law comes from our Constitution and our General Laws. The SJC merely does its best job to tell us what the law is (as opposed to what it should be) when there is a dispute.  For example, the SJC did not create the right for same-sex couples to marry (as Mitt Romney and George Bush contend), but rather found that their right to marry was always embodied in our State Constitution.  It always existed, even if we had not previously recognized it.

            We the People, however, are empowered to control our Constitution.  (Otherwise, 5 SJC Justices would be able to control the fate of any issue in perpetuity, which would bind us to atrocities such as the aforementioned Plessy decision.)  The Constitutional amendment process exists so that The People will always have the ultimate say on the laws of their government.

            So, while the Goodridge decision still stands as the law of the land, there is a constitutionally created process (every bit as powerful and important as judicial review) by which citizens may amend the Constitution.  Nothing should come between The People and their Constitution. 

            In a democracy, this means that the amendment process is available to bigots too.  Whether or not we agree with them is irrelevant to whether or not the process should be available to everyone.  This is why the ACLU fights to protect the rights of the KKK to march.  Even the worst among us are entitled to the protections afforded by the Constitution.  Anything less would place us on the slippery slope of rationing our liberties.

            So, your characterization of Tom Reilly’s position as pro-bigot or anti-democratic are really off the mark.  Tom Reilly is pro-democracy.  Period. 

            If we could all get what we wanted by ignoring the parts of our democracy that we do not like, we might feel better for the moment, but we would all be more vulnerable in the future.

          • But look at what we are now arguing:

            <

            p>
            1) The SJC decision that straights-only marriage is a fundamental violation of equality must stand, although it has never received an affirmative vote by the legislature or the electorate, and few or no legislators or drafters of the state constitution imagined this interpretation of it, and

            <

            p>
            2) It is all right for the legislative leadership to use procedural means to prevent something that the constitution appears to give a minority of 50 the right to do.

            <

            p>
            I think that MaverickDem is right that these are anti-democratic positions that we might well object to in other circumstances.  The equality of gay and straight people is a fundamental enough principle with me that I’m willing to embrace these positions, but we should not do it lightly.

            • Same-sex marriage is an emotionally-charged issue, but I have been trying to make the point that the Constitutional Amendment process is an entirely separate, yet vitally important issue.  We cannot simply sacrafice one for the other, nor do I believe that we have to.

              • Sorry…I have been busy and haven’t been able to respond.  There is a fundamental problem with this argument about the consitutional amendment process.  The Constitution prohibits citizens amendments from expressly overturning an SJC decision.  It does not take a future SJC decision to do so if the consitution is amended to reach the same result. So here, Reilly had the option, and I would argue(along with two fromer AG’s) the duty, to not certify this intiative to move forward.  The SJC decision states that the state cannot deny gays and lesbians the right to marry.  That is the basic decision.  This amendment would take this right away.  It overturns the decision.  How does it not?  This is not a is it right or is it wrong debate here, it’s simply fact.  I am not advocating abandoning the process.  I am arguing that the process actually required Reilly to not certify the amendment.  Given the lower vote requirement, it is easy to see why this protection is in place.

                <

                p>
                And you cannot separate the process from the issue.  This country has never voted on whether or not to take away civil rights from a subset of the population.  It’s anathema to everything this country stands for.  We would never ever allow a vote that would take away rights form a racial, gender, or religious minority.  It wouldn’t be tolerated.  Yet to allow people to take away rights from gays and lesbians is somehow democracy at its finest?  The “let the people vote” argument is a way to wrap one’s homophobia in the flag and make it sound patriotic. 

                <

                p>
                BTW, an honest question (though it may sound loaded).  Has Reilly had any events with the GLBT community?  I know Patrick has had several as has Gabrieli.  But I have not heard of any hosted by or for the Reilly campaign (but I could have missed it).

                <

                p>
                And one last point…if Reilly is so opposed to the amendment, has he been using his influence as AG to convince wavering legislators to vote against the amendment? 

                • Interesting — the idea of non-amendable parts of the constitution is interesting to me because I sometimes teach logic, not that logic and law keep much company nowadays.  (For example, the US Constitution cannot be amended to deprive each state of its equal representation in the Senate, but what if you amended it first to delete that prohibition?)

                  <

                  p>
                  I hunted a bit through the state constitution online and didn’t find any clause about not overruling the SJC, but I could well have missed it.  Do you have a reference?

                  <

                  p>
                  So Reilly presumably ruled that this proposed amendment didn’t “expressly overturn an SJC decision”, assuming that this clause in the constitution is unambiguous.  Anybody know what his reasoning was?

                  <

                  p>
                  If your basic point is that Reilly is not as strong a supporter of gay marriage as the other two, and that this is a good reason to vote against him in the primary, I agree.

                • DaveMB, you’ve got it right.  Reilly’s argument is that a constitutional amendment cannot expressly overturn an SJC decision, i.e. the amendment could not say “Goodridge is null and void.”  However, a constitutional amendment may say “marriage is defined as only between a man and a woman.”  The difference is that the former attempts to overturn a decision, while the latter attempts to amend the Constitution.

                  <

                  p>
                  Again, both Reilly (and I for that matter) oppose the amendment, but recognize the constitutional right of the citizens to control their Constitution.

Archives