Ginny Buckingham in the Herald and Scot Lehigh in the Globe both weighed in today on what the legislature should do in tomorrow’s ConCon. Sorry Ginny, but Scot’s right, and you’re wrong, on this one.
Here’s Ginny:
Truly, Chad Gifford, Larry Fish, Cam Kerry, et al [all of whom signed yesterday’s Globe ad urging the legislature to reject the amendment], have every right to lobby the Legislature, march on the State House or, more likely, persuade other opinion leaders over lunch at Locke Oberâs. Heck, they could pass the hat and buy a TV ad during the All-Star Game tonight if they so choose. But they donât have the right to take away our vote.
And now that the Supreme Judicial Court has blessed the ballot question as legally legit, the state Legislature doesnât have that right either….
Whether âwe get to decideâ what marriage means will be determined tomorrow. Whether democracy still has any meaning at all on Beacon Hill will get determined then, too.
Rubbish. Of course the state legislature has the “right” to decide whether this proposed constitutional amendment gets to the ballot or not. Remember the state Constitution? If not, here’s a reminder:
Section 4. Legislative Action. – … At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.
Clear enough for ya, Ginny? Only those initiative amendments that can garner 50 votes in the legislature deserve a shot at the ballot. If the framers of Article 48 didn’t want the legislature to have a say in whether initiative amendments backed by the requisite number of signatures make it to “the people,” they wouldn’t have written one into the Constitution.
Scot gets it:
Gay marriage opponents insist legislators have an obligation to move the measure along so the voters can eventually decide. “Let the people vote” has become one of their favorite mantras.
That argument is simply silly. The state constitution establishes a clear gate keeping function for the Legislature.
If opponents can deny the amendment the 50 votes it needs both in this legislative session and the next, they would deal it a completely legitimate defeat. There is no obligation to let the voters decide.
Exactly correct, both as a legal matter and as a small “d” democratic matter. Our Constitution does not guarantee a plebiscite on every proposed constitutional amendment that picks up enough signatures. Rather, it assigns a “gatekeeper” role to the state legislature. Setting the bar low – only 25% of the legislature needs to approve initiative amendments – ensures that only those proposals that cannot garner even a modest level of support from the people’s elected representatives will be barred from the ballot. Even Buckingham’s bosses at the Herald’s editorial board get this one right: “If it canât get that number on an up or down vote then surely it is not worthy of further consideration.”
Buckingham’s column is replete with precious irony. She starts it out by saying that “some 123,356 citizens signed a petition so we – all of us – would have the chance to vote on the meaning of marriage in Massachusetts.” Now, why is the number of signatures important? It’s important because Article 48 makes it important – under Article 48, you have to collect a certain number of signatures to even have your proposal considered. Unfortunately for Buckingham, it’s the same Article 48 that gives the legislature a gatekeeper function for amendments that have received the required number of signatures. You can’t have it both ways – if one requirement is important, so is the other.
Lehigh’s bottom line is the same as mine:
the best and most appropriate course for dealing with this amendment is to defeat it in a way that respects the intent of the constitutional process — a way that gay marriage supporters can later defend as a completely honorable, legitimate, and definitive victory for their cause.
The legislature should vote tomorrow. And they should vote “no.”
Lehigh argues that the “best way” to defeat the amendment that “respects the intent of the constitutional process” is to take up the vote tomorrow and vote “no”.
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But why is this the case? Is it so clear the “intent” was for the legislature to take the issue up at all? It seems to me the purpose of the process was to ensure that the legislature takes a long look at any proposal and give it its thumbs up. If it doesn’t give it the thumbs up, either through a formal vote or through adjourning the session until the biannual session is over, then it seems that this in accordance with the “intent” of Article 48.
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Other that that potential quabble, clearly Lehigh has the better argument here.
the SJC has taken the position that the legislature has a constitutional duty to take “final action,” meaning an up-or-down roll-call vote, on every proposed amendment that is properly before it. There is no judicial remedy if the legislature refuses to do so, but that doesn’t mean that the duty doesn’t exist.
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So I don’t agree with you that repeatedly adjourning the ConCon until the session expires and the amendment dies without a vote is consistent with the intent of Article 48. Nor, IMHO, will it be perceived that way by the general public.
I understand your respect for the process, and I too would prefer that the amendment be defeated by not getting its 50 votes. Still, what are the consequences to the legislators if they refuse to vote on this?
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1) The SJC can’t force them.
2) The Governor et al can’t do anything much more than complain.
3) 98% of the legislature will still be reelected in the fall.
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Is a rule that cannot or will not be enforced really a rule?
Actually, sco, in it’s 2002 ruling, the SJC deferred to then-Gov Swift to call to reconvene the convention and she chose not to. You can bet that Romney would jump on that opportunity.
http://www.mglpc.org/printer.php?id=57
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As for consequences, I think any parliamentary maneuver that didn’t allow for an up-or-down vote would fall right into the Healey trap of balancing a “legislature run amok.”
Romney can reconvene the convention as much as he wants, but he still can’t force a vote, can he?
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As for the legislature run amok, they’ve shown no inclination that they particularly care about their image in the past. I see little reason as to why they’d start now.
There are no direct consequences, since the SJC won’t order them to do anything. However, under Article 48, the Governor can – and you can bet will – force them back into session if they fail to vote. And this Governor, unlike previous ones when this happened, has nothing to lose and everything to gain by making his relationship with the leadership as bad as possible. So I would look for Romney to repeatedly call them back into session until they actually vote. It will be very public, and very embarrassing for the legislature, who will accurately be portrayed as shirking their constitutional obligation because they’re afraid of the outcome. And it is the biggest gift the leadership could hand Kerry Healey, as I’ve noted before.
I’m really behind your opinion that we need to vote on this now. Hopefully I’ll bump into you at the State House tomorrow =p
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Seeing Mitt Romney stage a ConCon every few months and get on Meet the Press, Reilly, Hannity, etc. over this issue is just about my worst nightmare. The sooner Willard is forgotten, the better.
I’m really behind your opinion that we need to vote on this now. Hopefully I’ll bump into you at the State House tomorrow =p
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Seeing Mitt Romney stage a ConCon every few months and get on Meet the Press, Reilly, Hannity, etc. over this issue is just about my worst nightmare. The sooner Willard is forgotten, the better.
I don’t know, is he even in town that often anymore?
I don’t think the “public” would care, only a very, very small percentage of it. However, given the SJC’s ruling, I will also back your essential opinion. Let’s do the dirty work and kill this amendment the old fashioned way; avoiding parliamentary procedures to put it off, we’ll vote the sucker down.
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I’ll be on the phone with both my rep and state sen.
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PS: David, I hope you didn’t take my blog on my website too seriously (if you even actually read it, although I assume you did because Bob did), but I was annoyed that you not only disagreed with the Phoenix’s main point, but went as far as repeatedly calling it “disgraceful,” and I think that went too far.
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There’s a lot at stake here and anyone who tries to defend a minority’s civil rights is far from disgraceful, even if they do it in ways that you don’t support. Even MLK Jr. made decisions I disagreed with, especially in regards to the SNCC, but they weren’t ‘disgraceful’ just differences in opinion over how to proceed. So if MLK can’t be perfect, how could we expect a bunch of suedo-journalists working at a Boston outlet named after a mythical, burning bird?
didn’t see your response in the other thread. Thanks for the informaton — it’s very interesting.
It only needs to lose once in the Legislature (getting fewer than 50 votes) in order to be defeated. It does not need to lose twice.
I noticed that too, but I think it’s just a peculiar sentence. He says: “If opponents can deny the amendment the 50 votes it needs both in this legislative session and the next, they would deal it a completely legitimate defeat.” What he’s saying is that the amendment needs 50 votes both in this session and in the next one, and if the supporters can deny the amendment those votes in either case, they will have won a legitimate victory.
Is that “our vote” is expressed through our elected representatives. Buckingham should argue for every piece of state legislation to be decided by referendum to be consistent. (Come to think of it, that would allow us to do away with the legislature. Good God, maybe the woman is on to something!) Sadly, this is what happens when a political hack, as excruciatingly detailed in this profile of Republican operative Buckingham’s arrival at the Herald, confronts complex concepts. Embarrassing really, especially considering that her husband is, or was, a Superior Court judge. As to Buckingham’s views on marriage, the Phoenix reported she described herself a few years ago as “struggling,” and noted that she has a lesbian sister who is “in a long-term committed relationship.” “Buckingham, who is Catholic, adds: ‘Iâve given a lot of thought to it personally. I havenât reached a conclusion. Iâm not trying to dodge it,'” the Phoenix added.
votes already? I’m not sure exactly where I saw that, either here or in the Globe online. I seem to recall some commentary or reporting that getting 151 votes against will be extremely difficult if not impossible.
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Incidentally, not to be off-topic, but what exactly will this amendment do? I know a whole bunch of different amendments were proposed in 2004, but which one is being considered now?
This one will ban all same-sex marriages starting from the day it takes effect forward. Those marriages that have already been performed will not be anulled (so to speak).
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It is highly likely that it will get 50 votes. The only way it will fail is if nearly everyone who voted in favor of the amendment that created civil unions last year votes against this amendment this year.