First off, I just want to say that I would rather be writing about an issue that is really an issue, and not some political space filler.
It looks as though Donato is not going to change his vote, even though it’s clearly obvious that his constituents would love to see this proposed amendment fail. As he said, he’s willing to suffer the political consequences of his actions, and he will.
I was also thinking today that even if there are not enough votes this time around to end this issue (which will surely mean a postponement of a vote to another date), there are many courses of action to be taken after the fact.
I like what someone on here said about tabling the vote until the issues regarding fraudulent petition collecting were resolved. I also am excited that Martha Coakley has said she will fight to overturn the vote if it actually goes on the ballot and gets passed.
I was also thinking about how I’m not sure if, when it comes down to it all, this will pass constitutional muster. I’m not even sure of the exact procedures involved, but I imagine if it goes to judges who have to decide if the new law is constitutional or not, I feel like there is little chance of it passing constitutional muster. Does anyone have a clearer idea than I do on how that all works??
Regardless of all the “what ifs” and “maybes”, there is still time to contact your state representative and state senator to speak with them regarding this vote. Even if that means just calling or writing to say thank you for not voting in favor of this amendment. And contact Senator Murray’s office and remind her it is indeed constitutional to kill this procedurally by reminding her of the health care initiative that was killed in January right after her fellow legislators were “doing their duty” by holding a vote on SSM.
And for what it’s worth, contact the governor too. The people who want this issue to go away need to be reminded that they have a great amount of support in seeing this die before it gets on the ballot.
As always, head on over to MassEquality’s Action Page to get in contact with your legislators if you are unsure how to do so.
The SJC had this to say:
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“If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. We may then give careful consideration, in view of what has been said above, to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document’s elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits.”
was not for the Court. It was written by Justice Greaney, and joined only by Justice Ireland.
Unfortunately, it seems that precedence is in favor of amendments trumping whatever is in the Constitution. Think of the 21st amendment to the US constitution which did nothing other than repeal the 18th (Prohibition).
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I would love to see someone propose an amendment prohibiting freedom of speech in favor of whatever cause to demonstrate how ludicrous the idea of denying a minority’s rights based on popular will is.
…of the 18th Amendment by the 21st is not a good analogy. The Constitution of the Commonwealth (CotC) provides that all citizens shall have equal protection and due process of law. Adding an amendment to the CotC that abridges the rights of a group of citizens to enjoy equal protection and/or due process of law without specifically and explicitly repealing and/or reforming the provisions in the CotC that provide such protections to ALL citizens creates an unresolved tension that is not equivalent to adding and repealing a prohibition to the CotUS that did not have any cross section with other fundamental rights and which applied to all citizens equally. Keep in mind that the 21st Amendment explicitly overturns the 18th. Imagine if a 28th Amendment said Muslims are no longer eligible to be considered citizens of the United States but did not explicitly alter the establishment clause or the 5th Amendment or any other provision of the Constitution that was being eviscerated without reference. Would there be an argument that this amendment on its face was not constitutional? Essentially it may be the case that the CotC can’t say equal protection and due process for all and no same sex marriage because that latter provision denies certain citizens the former without expressly revising the former. There is no precedent to hang this hat on and as far as I can tell if the argument comes to be considered by the SJC it will be a case of first impression, and of course, an issue of State Constitutional jurisprudence not limited to available federal precedent and not affected by the jurisprudence of any other state.
the principle that a newer statute trumps an older one. It is pretty well established.
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As I understand the argument, which I am not qualified to judge but which I suspect is a long shot, the Adams Constitution is coherently organized around such common-law and even natural-law ideas as the inherent equal rights of all. Therefore, it would take more than a mere constitutional amendment to violate that philosophical integrity–presumably a whole new constitution, if not a whole new Commonwealth.
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Describing that in terms of there being no specific language in the amendment repealing the sections of the constitution that are the sources of this “natural” equality reduces this argument to a technicality: Oh thank goodness, the anti-marriage people forgot to say “Mother May I.”
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I’d be happy if the amendment turned out to be technically flawed but that is not, as I understand it, the real basis for the counterintuitive suggestion that a constitutional amendment adopted by the people in accordance with the constitution could nonetheless be unconstitutional.
….the basis for what you call a “counterintuitive” argument but which I, and many others, find intuitive is just as I’ve explained it. A constitution may not be in conflict with itself and so failure to resolve any real conflict when drafting and amendment may be a critical flaw. “Mother may I” is a cute turn of phrase but not at all encaspulative of the concept that I was discussing.
…of clarification – Constitutional Amendments are not statutes so rescission by implication, which I understand more in terms of Contract Law but which does have statutory implications, would not be the default principle in a Constitutional question.
I’m guessing that while the petition would be Consitutional, i.e., the people can ask for signatures to put it on the ballot, however, if it passes then it would overturn the part of the Consitution where a Court decision cannot be overturned by a citizen’s petition.
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Before May 17th 2004, all the anti-gay zealots were screaming what a mess same sex marriage was going to cause to the legal system. When nothing happened they apparently took it upon themselves to foster a process which would really create a mess. 3 classes of people (str8’s who can get married, gay’s who are married & gay who can’t marry).
Not really. That was the exact issue before the SJC when ex-AG Reilly’s certification was challenged, since an initiative petition cannot reverse a judicial decision. The SJC concluded that the anti-marriage amendment would not do so. For better or worse, that issue is behind us.
What would be the effect of the proposed amendment? Consider the following two facts:
1. The Supreme Court held in Goodridge that the Massachusetts constitution “forbids the creation of second-class citizens.” So if you let opposite-sex couples marry, you have to let same-sex couples marry.
2. The proposed constitutional amendment would prohibit Massachusetts from allowing same-sex couples to marry, but would not repeal the parts of the constitution providing for equal protection.
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If the amendment is passed, the constitution will say 1) you have to treat same-sex couples the same as everyone else and 2) same-sex couples can’t marry. The only way to reconcile these provisions is to prohibit marriage for everyone. Forbidding marriage allows the state to uphold equal protection while also denying same-sex marriage.
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The legislature could set up civil unions for everyone, but it would still be a mess because the federal government doesn’t recognize civil unions.
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I wonder if the voteonmarriage crowd realizes that they’re pushing a constitutional amendment to ban heterosexual marriage. If they wanted to ban just same-sex marriage and not affect opposite-sex marriage, they would have to pass an amendment repealing the equal protection provisions of the current constitution. Their proposed amendment doesn’t do that.
my first take on it too.
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But I think that outcome, though intelligible and arguable, is not likely.
I agree that, for political reasons, the SJC probably won’t reconcile equal protection with the new amendment by banning all marriage. That reading may actually get a couple of votes, but a majority is unlikely. I still think it’s important to bring the idea often for a few reasons:
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* I think that really is the best way to reconcile the new amendment with Goodridge
* A legislator on the fence could use this as their reason (excuse) for voting against the amendment at the con-con tomorrow
* Pointing out the possibility that the amendment will ban all marriage might discourage some people from voting for it
* The more often this possibility is pointed out, the easier it would be for the SJC to actually do it. If the people who voted for the amendment knew when they voted that it might ban all marriage, it’s harder for them to complain if it happens. If the amendment actually goes to a vote, I’d like to see “Ban all marriage, vote yes!” signs around the state.