John Hanify, the attorney for the plaintiffs, argued that the state legislature has a pattern of unfairly derailing initiative petitions for constitutional amendments, failing to take votes on the merits of five of the last six placed before them in the past 25 years. He said the process was designed to give a minority of citizens the power to place an amendment on the ballot by setting a very low bar for passing it in the legislature; an initiative petition for a constitutional amendment only requires support from one-quarter of lawmakers during votes in two successive sessions to place it on the ballot. Hanify said by killing amendment petitions procedurally lawmakers have effectively raised that bar to require support from a majority of lawmakers, robbing minority interests of the right to place constitutional amendments on the ballot.
Justice John Greaney, who joined the majority in the 2003 Goodridge ruling finding that same-sex couples have a right to marry, said he believed in prior cases the SJC had made it clear that lawmakers had an obligation to vote on initiative petitions for constitutional amendments, but he questioned what sort of remedy the court could provide if lawmakers declined to take the vote.
“Do we lock [the defendants] up, find them in contempt?” asked Greaney.
The answer is no.
But the Globe weighs in SJC role in gay marriage vote argued.
It would be delightful to imagine the court sending out marshals to round up lawmakers and giving them a police escort back to the State House. But that only happens in Texas. And then what? It can’t force a vote.
The court has only one real weapon at its disposal right now – the ability to tell legislators what their duty under the Constitution is. Because given their current behavior clearly they have forgotten that.
The arguments boil down to the lawyer for the amendment supporters acknowledging that “the court could not force the legislature to take a vote, but said the justices could pressure lawmakers to act by spelling out the intentions of the constitutional provision that permits citizen initiatives.”
And the lawyer representing legislature responded that if people don’t like the way the ConCon recessed without taking a vote, the only real remedy is at the ballot box. The SJC can’t force the ConCon to vote on the merits of the amendment.
Some say that if the issue were reversed and an amendment putting gay marriage into the constitution were being blocked that supporters would be equally outraged. Maybe. But if the issue were also reversed, and an amendment VoteOnMarriage didn’t want was being blocked, you can bet they’d be happy about the ConCon recessing. It does work both ways and we just have to live with that process. “Democracy is messy,” said Rumsfeld, “finest secretary of defense this nation has ever had,” according to Dick Cheney.
There’s still a lawsuit filed in federal court, suing the 109 legislators who voted to recess. I don’t get why that would be in federal court.