UPDATE (by Charley): The SJC has upheld the certification, according to Boston.com.
The Supreme Judicial Court has announced that the decision in Schulman v. Attorney General, the case challenging AG Tom Reilly’s certification of the anti-marriage amendment, will be released today at 10 am.
Good timing by the SJC. If the court overturns Reilly’s decision to certify the amendment, then there will be no need for the legislature to vote on it on Wednesday, since at that point the amendment will be a dead letter. If, on the other hand, the court sustains Reilly’s action, then the amendment is legal, and the arguments of those who say the amendment is itself unconstitutional will have been put to rest in advance of the vote.
Stay tuned.
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I was no sooner going to comment on your post about gay marriage when I saw this post. I was going to raise the issue of Section 2 to challenge the entire notion of the proposed ballot question. I am curious to see what the SJC says. I am biased in support of SSM so my analysis is obviously effected by I have a hard time seeing how the proposed amendment which denies gay marriage isn’t a reversal of a judicial opinion that ruled for gay marriage. I am very curious to read how the Court comes to its decision should the SJC find that the amendment may go forward to a vote.
The Section 2 argument that you highlight here, and which has been made elsewhere, is, in my opinion, flawed. I do think it likely that the flaw will be dismissed by those outside the legal profession.
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Section 2 prohibits a question that would “reverse” a judicial decision. I think “reverse” is a term of art that means the specific disavowance of a named judicial decision. That is, if the measure read “Goodridge v. Dept of Health was wrongly decided and is hereby reversed,” then it would be barred by Section 2.
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This measure doesn’t do that. Instead, it would supersede the decision. Goodridge would still be an accurate description of the state of the law prior to the enactment of the ballot measure. The measure would render the decision moot, rather like a decision interpreting, say, the 18th Amendment to the US Constitution, which was later repealed. That decision is still good in the sense that it hasn’t been reversed, but applies to a section of the constitution that no longer exists.
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Reilly is, if nothing else, a careful lawyer, and got this one right. Many of the arguments of his critics on this topic seem to advocate abaondoning the rule of law except when they choose otherwise, which goes a long way to show why many people are deeply uncomfortable with policy decisions such as this being decided by litigation rather than legislation.
Is there a way to edit a post if you notice something like this?
You have to delete and start again. Most unfortunate.
This is why the whole “Why did Tom Reilly certify the initiative” controversy was/is just political theatre. Reilly was never going to be the final word on the amendment. Either way he ruled, it would have gone to the SJC.
Your analysis is a little off sco. Though it turns out the Reilly isn’t the last word he could have been. The court could have said that the certification was invalid, that the petition was invalid, and therefore that the whole need for a vote is moot. That was entirely within the realm of possiblity.
If Reilly had rejected it, Article h8 and the vote on marriage groups would have appealed, and the same thing would have happened. If I recall correctly, they could still collect signatures either way. Maybe he could have delayed it until 2010, but in light of the SJC’s ruling, it seems like Reilly would have been unable to stop this no matter what he did.
Ah, but if Reilly had shown some judgment and leadership, this would have been settled easier, earlier and cleaner. He could have stated strongly that this amendment violated the law. That would have been much more meaningful and influential than the wavering and waffling. It seems like every chance he has to show leadership (as would be required from a governor, he would rather say he’s only doing his job — maybe…part of it.
I thought Reilly was relatively clear on this amendment — he is personally against it, but (correctly) determined that legally he had to certify the petition as AG.
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As far as his actual position on gar marriage itself, what is his official position? Has he definitively come out in support of equal marriage? I should know this, but he certainly hasn’t brought the issue up too much himself.
No, Tom was not clear and certainly not comprehensive. He has held that he was not/was against same-sex marriage, and then that he would enforce it following the Goodridge decision, only because it was law. That was weak and inadequate to a crucial question.
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That would have been a great point to come out of the equality and equal protection the SJC said drove its iniital decision. He is not a member of the SJC, but should have influence.
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On this specific amendment drive, he has done a pathetic dance. He claims to favor SSM and would vote against the amendment he says were he a legislator. On the other hand, he is willing for us to spend two more years on a divisive effort that 1) aims to write inequality and discrimination into our constitution, and 2) he could easily has interpreted as violating Article 48 and refused to have certified it.
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I contend that had he analyzed the issue with intellect and courage, he could have decided it was trying to overturn a court decision. Even the unanimous SJC ruling today leaves wiggle room in that direction. At the least, he could have called it what it is — a doomed and almost certainly unconstitutional effort to strip civil rights from one group, creating unequal classes of citizens. As such, he could have given input and direction to the SJC, which it does consider.
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His legal indecisiveness and low level of analysis might be okay for a DA — only enforcing the law, sir. However, as chief legal officer for the commonwealth, he owes us more. He wants to be our leader, but can’t show leadership as AG.
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On important issues in either office, he needs to be strong and clear. He should be a scout and pathfinder, not a meek follower.
that Reilly needs to perhaps show stronger leadership on the issue himself, and squarely come out in favor of gay marriage (rather than simply state he is against this amendment, which is not the same thing). However, I believe you overstate what Reilly could have done as far as certifying the petition goes.
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First off, the SJC decision did not leave any “wiggle room” at all in the direction you suggest. It cleared up some definitional confusion about “reverse” pretty clearly, I thought. Second, I really don’t know what Reilly could have done different as AG (as opposed to “candidate Reilly”), because his certification of the amendment was clearly legally correct, and he has a duty to enforce the law.
Well, both in the main opinion and the Greaney/Ireland concurrence, they kick around the “reverse” v. “overrule” distinction. They draw back on the 1917-18 ConCon for that. It may well have led them to their conclusion that Reilly’s certification had “no error” as they wrote. However, they noted that this worked in the AG brief “on the only ground argued.”
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It seems that at least two judges would like to have had more material to work with in this decision and might have ruled differently had they gotten it.
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Likewise, the Greanehy/Ireland expansion indicates the poisonous nature of the attempted introduction of what they name “discrimination in its rawest form.” They point out that this likely conflicts with and is “out of place in the Adams Constitution, when compared with the documents elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights.”
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With the opinion’s strong statements that this conflict needs resolution and the implication of their view, they point the way to legal challenge. Not only did the AG not seem to consider this key aspect in the certification process, GLAD did not argue this in its case. Both should have.
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At the least, in keeping with “the law” as Reilly like to hide behind, he should have gone to both the Governor and General Court to decry this serious problem. At the least, the legislators need to be aware of the conflict as they debate on Wednesday.
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We should focus entirely on the SJC ruling that the AG’s certification was not flat out wrong.
According to this report, the SJC has okayed the ballot question.
Key graf from the aforementioned AP report:
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“In a unanimous decision, the Supreme Judicial Court said the constitution does not bar citizen initiatives from making prospective changes to the constitution, even if that effectively overrules the effect of a prior court decision, because that change would not be a reversal.”
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Not being legally expert, I don’t have an opinion on the rightness or wrongness of the decision. But it’s convincing that the same SJC which approved gay marriage should rule this way. Clearly they are taking each case on its legal merits, not simply advancing particular ends. It undermines Bush et al’s “activist judges” b.s.
And as far as the action decision today goes, it was clearly the correct decision. We have to remember that this decision has ramifications beyond gay marriage — it affects the “reversal of a judicial decision” language for ANY issue.
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If the decision had gone the other way, then it would have made it pretty much impossible for people to amend their Constitution on anything that conceivably been ruled upon in the past by the SJC. The analysis that holds that “reversal” refers only to retroactively vacating a decision and overturning the results for those particular claimants makes sense.
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Justice Greaney’s concurrence was very interesting, BTW, and raises interesting issues about the amendment’s effacacy even if it DOES pass.